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NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



INTERNATIONAL LAW STUDIES 

1962 



THE INTERNATIONAL LAW OF 
OUTER SPACE 

by 
Carl Q. Christol 



$ 



NAVPERS 15031 
Volume LV 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1966 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 20102 Price $2.50 



REVIEWED AND APPROVED 



13 October 1965 



(Date) 




<^d^v> 




u~. 



Assistant Chief for Education and Training 



FOREWORD 

Since the Naval War College was founded in 1884, the study of 
International Law has been an important part of the curriculum. 
From 1894 to 1900, certain lectures given on International Law and 
the situations studied were compiled and printed, but with a very 
limited distribution. Commencing in 1901, however, the first formal 
volume of the Naval War College's "Blue Book" series was pub- 
lished. 

This book represents the fifty-fifth volume in the series as num- 
bered for cataloging and reference purposes. This present volume is 
written by Professor Carl Q. Christol of the University of Southern 
California who occupied the Chair of International Law at the Na- 
val War College during the 1962-1963 school term. It is considered 
that Professor Christol's book represents an excellent, informative, 
and comprehensive work in the developing field of space law. It 
should also prove to be a most valuable source of reference material 
in this particular area of international law. 

The opinions expressed in this volume are those of the author and 
are not necessarily those of the United States Navy or of the Naval 
War College. 

C. L. Melson 

Vice Admiral, U.S. Navy 

President, Naval War College 



in 



PREFACE 

The author of this Naval War College Blue Book is less an inno- 
vator than a synthesist of a dynamic but well-considered subject. 
Though the international law of outer space may seem, at first 
glance, to be novel or unique, in reality much careful thought has 
been accorded the subject during the past fifteen years. More impor- 
tantly, space law is but a new segment, with variations and modifica- 
tions, of an ancient discipline. Space law is a manifestation of one of 
law's most singular qualities, namely, a capacity to adjust to the 
emerging facts of a given social complex. 

Today the legal and technical literature dealing with outer space is 
extremely vast. To begin to cope with it is no easy task. Even to run 
with great speed leaves the analyst with the feeling of standing still, 
for careful studies — representing the importance of the subject — con- 
tinue to circulate at an ever-increasing rate. 

The law of outer space is particularly challenging because of its 
interrelated legal and political characteristics. Even so, there is an 
important need to provide practical guidance to those whose deci- 
sions will have a bearing on national and international activities and 
interests. In this connection, the research for this book was essen- 
tially accomplished with materials available through 1963. 

In this area many legal problems are well known and can be easily 
identified. Certain aspects, however, have received little attention, 
and are subject to prediction based upon an analysis of probable 
trends. In both situations, reality demands the building of a law-re- 
specting world equipped with a set of legal principles and rules for 
outer space. This will contribute to the elimination of some of the 
world's pyramiding problems — some of which may be almost beyond 
the capacity of the mind of man to handle. 

It is my hope that this Blue Book may serve to facilitate a rational 
decisional process for those confronted with grave responsibilities 
respecting outer space. It is not too much to assert that such deci- 
sions may affect not only the nation of the decision maker, but, in 
sum, the totality of man's multidimensional universe. 

The author is indebted to many individuals and institutions for 
their assistance in making this volume a reality. I am indebted to 
President Norman Topping and my colleagues at the University of 



VI 

Southern California for permitting me to enjoy a special leave so 
that I might accept appointment to the Chair of International Law 
at the Naval War College, 1962-1963. 

I am indebted to Vice Admiral B. L. Austin, USN, and Vice Ad- 
miral C. L. Melson, USN, Presidents of the Naval War College and 
their staffs for facilitating my research work and for permitting me 
to consult broadly with experts in the field. At the Naval War Col- 
lege, specific mention must be made to the Extension Education 
Department, and especially to CDR Charles R. Davis, USN, CDR 
Charles E. McDowell, USN, LCDR Charles E. Waite, USN, and to 
LCDR Arthur J. Johns, USN, for their helpful suggestions, both as 
lawyers and naval officers. Additionally, the author is most grateful 
to the secretarial staff of the Extension Education Department, the 
Library staff, and members of the art branch of the Visual Aids 
Department. 

I have been privileged to consult with a number of friends and 
lawyers in the course of preparing this Blue Book, and I wish to 
acknowledge my deep debt to them for their valuable advice and 
assistance, namely, Professors Gordon B. Baldwin, Richard R. 
Baxter, Carl M. Franklin, Albert H. Garretson, Oliver J. Lissitzyn, 
My res S. McDougal, Louis B. Sohn, Quincy Wright, Mr. Abdel- 
Ghani of the United Nations Secretariat, the Honorable Abram 
Chayes, the Honorable John A. Johnson, Mr. Leonard C. Meeker, 
Mr. Oscar Schachter of the United Nations Secretariat, Mr. Richard 
Young, and from the Office of the Judge Advocate General of the 
Navy, RADMs Wilfred A. Hearn, William C. Mott, Robert D. 
Powers, and Captain Joseph B. McDevitt. I am, of course, alone 
responsible for all of the conclusions arrived at and for the form and 
style of this Blue Book. 

Carl Q. Christol 
University of Southern California 
Professor International Law and Political Science 

Los Angeles, California 



TABLE OF CONTENTS 

Page 

FOREWORD iii 

PREFACE . v 

Chapter 

I INTRODUCTION 1 

A. International Law and Outer Space 1 

1. National and International Purposes to Be Served 7 

a. National and International Capabilities in Outer 

Space 15 

(1) Free World Science and Technology; An Ap- 
praisal 19 

b. Political Approaches to the Law of Outer Space 33 

c. Policy Approaches in the United States to a Law of 
Outer Space 44 

B. The Essentials of a Minimum Public Order 49 

II OUTER SPACE AND THE WORLD COMMUNITY. _ 55 

A. Characteristics and Capabilities of Space Vehicles 55 

1. Space Vehicles Distinguished from Other Devices 55 

2. Satellites 56 

3. Orbiting Space Platforms 74 

4. Bidimensional Devices 75 

5. Multidimensional Devices 76 

B. Users of Space Vehicles 77 

1. Public Users 77 

a. Nation-States 77 

b. International Entities 80 

2. Private Users 84 

a. Corporations 84 

b. Other Private Users 86 

3. Public-Private Users 86 

C. Probable and Possible Uses of Outer Space 88 

1. Informational Activities 89 

a. Weather Meteorology and Forecasting 89 

b. Geodetic and Navigational Aids 93 

c. Observational Facilities 95 

d. Communications Media 103 

2. Scientific Activities 106 

a. General Research 107 

vii 



Vlll 

TABLE OF CONTENTS — Continued 

Chapter Page 

II OUTER SPACE AND THE WORLD COMMUNITY— 
Continued 

b. Exploration and Experimentation 107 

c. Protection Against Disease and Forms of Contamina- 
tion 108 

3. Commercial Activities 109 

a. Resource Exploitation 109 

b. Transportation 110 

c. Weather Control 110 

d. Communications Media 111 

4. Military Activities 111 

a. The Right of Self-Defense 114 

b. The Maintenance of International Peace and Secu- 
rity 116 

5. Social Activities 118 

a. Expansion of Human Knowledge and Resulting Per- 
sonal Satisfactions 118 

6. Political Activities 119 

a. National Prestige 120 

b. Policy Analysis and Formulation 121 

c. International Cooperation 122 

d. A Unifying Force for Peace 123 

III THE DEVELOPMENT OF THE LAW OF OUTER 
SPACE 125 

A. Legal Principles and Rules 125 

B. The Decisional Process 127 

1. Custom: Collaborative Activities and the Uniformity 

of Expectations 127 

a. Collaborative Activities 127 

b. The Uniformity of Expectations 147 

2. General International Law and Comity 176 

3. National and International Expressions: Claim and 

Acquiescence 176 

a. Special International Law 176 

(1) National Claims 177 

(2) Deliberations at the United Nations 183 

(3) Role of Other International Organizations 230 

4. Bilateral Treaties and Other Agreements Dealing With 

the Use and Exploration of Outer Space 231 

5. General Principles of Law 235 

a. Estoppel 235 

b. Respect for Acquired Rights 237 



IX 

TABLE OF CONTENTS— Continued 

Chapter Page 

III THE DEVELOPMENT OF THE LAW OF OUTER 
SPACE— Continued 

c. Good Faith and Nonabuse of Rights 237 

d. Equitable Principles 238 

e. Private Efforts to Supply Space Law Principles 239 

6. The Problem of Analogies 247 

a. High Seas, Territorial Waters, Contiguous Zones, 
Continental Shelf, and Artificial Islands 248 

b. Airspace 254 

c. Land 255 

d. Antarctica 257 

e. International Rivers and River Basins 260 

f . Analogies in Summation 261 

IV REASONABLE USES OF OUTER SPACE 263 

A. The Nature of Reasonable Use 263 

B. Instances of Reasonable Use 268 

C. The Special Soviet View of Observational Activities 277 

D. The Special Soviet View of Communications Activities __ 295 

E. Restrictions on Uses of Outer Space 300 

1 . Preliminary Assessment of Factors to Be Considered in 
Determining Whether Outer Space Is Being Used for 
Reasonable Purposes 305 

2. Prelaunch Factors Affecting Reasonableness of Uses___ 306 

a. Verification and Inspection .__ 306 

b. Exchange of Information Relating to Outer Space 
Activities 310 

c. National Consultation and Cooperation as to Pur- 
portedly Undesirable Space Uses 312 

d. Elimination of Potentially Harmful Outer Space 
Experiments 315 

V THE RIGHT TO THE MAINTENANCE OF INTER- 
NATIONAL PEACE, SECURITY, AND SELF- 
DEFENSE IN OUTER SPACE 319 

A. Legal Authority for Dealing With Certain Uses 321 

1. The Legal Duty to Abstain from Certain Uses 322 

2. The Right to the Maintenance of International Peace 

and Security 323 

3. The National Right to Self -Defense 326 

4. Reprisals 331 

B. Competence to Deal With Certain Uses 332 



X 

TABLE OF CONTENTS— Continued 

Chapter Page 

V THE RIGHT TO THE MAINTENANCE OF INTER- 
NATIONAL PEACE, SECURITY, AND SELF- 
DEFENSE IN OUTER SPACE— Continued 

C. Processes to Insure the Reasonable Uses of Outer Space. 341 

1. Factors to Be Considered in Selection of Processes 341 

a. Precise Nature of Facts 341 

2. Noncoercive Processes 342 

a. Legal Institutions and Activities 343 

3. Coercive Processes 345 

IV LEGAL PROBLEMS ARISING FROM THE REA- 
SONABLE USES OF OUTER SPACE 351 

A. International Responsibility and Liability for Harm and 
Damages 352 

1. The Nature of the Problem 352 

2. Deliberations at the United Nations 356 

3. Communist Bloc Views 370 

4. Free World Views : Individuals 373 

5. Free World Views: Groups 377 

B. Possessory Rights, Assistance to Personnel and Return 

of Personnel and Space Vehicles 380 

1. Possessory Rights 380 

2. Assistance to Personnel and Return of Personnel and 
Space Vehicles 384 

C. Satellites and Space Communications 394 

D. National Jurisdiction Over Outer Space Activities 416 

1. Territory as a Basis for Jurisdiction 418 

2. Nationality as a Basis for Jurisdiction 420 

3. The Protective Principle 422 

4. The Universality Principle 423 

5. Analysis 424 

VII CONCLUSIONS 431 

Appendices 
Appendix 

A LIST OF ANNEXES 439 

B BIBLIOGRAPHY OF BIBLIOGRAPHIES RELATING 

TO THE INTERNATIONAL LAW OF OUTER SPACE. 489 

Index of Cases 491 

Au thor Index 493 

Subject Index 501 



CHAPTER I 

INTRODUCTION 

A. INTERNATIONAL LAW AND OUTER SPACE 

This book seeks to identify legal principles and rules influencing 
and governing the uses of outer space. It suggests reasonable appli- 
cations of such principles and rules. It proceeds upon the basis that 
the international law of outer space now possesses content and scope. 
It recognizes that this law, in its rapidly emerging condition, is par- 
ticularly influenced by political-legal dynamics. 

It is not the province of this volume to provide final answers to the 
issues and problems analyzed. Yet, this limitation — if it is a limita- 
tion — does not invalidate the importance of understanding current 
approaches to the law of outer space. 

In order to understand today's law of outer space it is necessary to 
comprehend the facts of today's social complex, including the revolu- 
tionary tempo which contributes so materially to the changes and 
challenges of the Twentieth Century. 1 All of the elements of the so- 

1 The past six million years of the earth's existence has been compared with 
a twenty-four hour day, and on such a scale all of man's notable achievements 
have been accomplished within much less than the last split second of the last 
second of the day. A similar comparison was made by President John F. Ken- 
nedy on September 13, 1962. In a talk entitled "The Space Challenge," he stated : 
"No man can fully grasp how far and how fast we have come, but condense, if 
you will, the 50,000 years of man's recorded history in a timespan of but half 
a century. Stated in these terms we know very little about the first 40 years, 
except at the end of them advanced man had learned to use the skins of 
animals to cover him. 

"Then about 10 years ago under this standard man emerged from his cave to 
construct other kinds of shelter. Only 5 years ago man learned to write and use 
a cart with wheels. 

"Christianity began less than 2 years ago. The printing press came this year 
and then less than two months ago, during this whole 50-year span of human 
history, the steam engine provided a new source of power. Newton explored the 
meaning of gravity. 

"Last month, electric lights and telephones and automobiles and airplanes 
became available. Only last week did we develop penicillin and television and 
nuclear power. 

"And now if America's new spacecraft succeeds in reaching Venus, [this was 
accomplished on December 14, 1962] we will have literally reached the stars 
before midnight tonight. This is a breathtaking pace and such a pace cannot 
help but create new ills as it dispels old, new ignorance, new problems, new 
dangers." 28 Vital Speeches 738 (October 1, 1962.) 

1 



cial complex have imposed highly significant and extraordinarily 
substantial demands upon the human species in the space age. 

By the social complex I mean those forces or factors which affect 
mankind. They necessarily include social, cultural, religious, ethical, 
aesthetic, economic, political, military, scientific, technological, ra- 
cial, ideological, lingual, and legal considerations. Many include im- 
portant subdivisions. For example, the economic factor might be 
further divided to include financial, commercial, industrial, labor, 
agricultural, and managerial categories. 

For the purposes of this study political and legal forces are of 
singular importance and very similar. It is the function of political 
forces to take into account the art of the possible. Legal forces em- 
phasize the use of given processes in order to achieve certain socially 
desirable goals or purposes. Although there may not be universal 
agreement as to the purposes to be served by legal processes, yet 
there is general agreement that, whatever the law is, it is subject to 
enforcement — by sanctions, physical or otherwise. 

It should be remembered that many of the elements of the social 
complex are normative in nature, that is, there is a high degree of 
"oughtness" in their composition. This is particularly true of reli- 
gious, ethical, social, ideological, and legal forces. The latter is nor- 
mative because of the impact made upon it by religious, ethical (or 
moral), social, and ideological demands. 2 

Thus, it should be understood at the outset that national and inter- 
national interests in outer space must take into account the highly 
interrelated and complex forces which for purposes of brevity have 
been designated as the social complex. These forces are multidimen- 
sional in significance. They affect the important figure of this study — 
man — in inner space, on the surface of the globe, in the atmosphere, 
and in outer space. Thus, despite the new physical dimensions into 
which man now extends his presence and his influence, from the legal 
point of view the environmental dimension is not central to this 
analysis. The law of outer space, just as all law, is designed for man 
and must serve his complex needs. Man's behavior, then, is the focal 
point of this study. 

The new tempo of mankind's existence is matched only by the nov- 
elty of man's conquest of outer space and the creative and imagina- 
tive excitement which this has generated. The proliferation of 

2 This has been portrayed by a former President of the American Bar Asso- 
ciation, who has written : "The rule of law means the rule of reason under the 
moral standards developed by the experience of man. Traditional moral values 
underlie law principles. These values have their roots deep in the conscience of 
humanity." Rhyne, "World Peace Through Law," 3 Student Law J. 6 (1960). 



3 

writing flowing from lawyers and others close to centers of policy 
formulation has been effervescent and divergent. These factors have 
demonstrated the need to put into analytical — even though tentative — 
form a statement of the law of outer space. 

It has been reported that the leading newspaper of an important 
North American city ran an immodest but arresting headline on Oc- 
tober 4, 1957, proclaiming the World Series successes of its teams. 
Only in the inner recesses of the journal could one learn that on that 
historic day man's first earth-launched, artificial satellite was rang- 
ing through the fairly proximate distances of outer space. In the 
short intervening years outer space has become more a part of our, 
and, indeed, world life than even baseball. 

How has this come about? And what kind of principles or rules 
have been devised for the participants in the outer space contest? 
Because it is a most important struggle it could perhaps be expected 
that formal rules governing man's use of outer space would by now 
have been stated. Only relatively modest and somewhat tentative 
practical legal notions have so far been attained, despite the ener- 
getic thought given to the matter of principles and rules. 

The limited legal achievements may be due to the fact that outer 
space is indeed a more complex matter than baseball. To carry the 
comparison a step further it now appears that the major participants 
in outer space activities have been waiting to see what the pitchers 
have to offer and what kind of hop the ball was going to take before 
an earnest effort was made to agree upon applicable legal principles 
and the formalization of specific rules. 3 The tempo of events, how- 
ever, is forcing policy decisions prior to the unfolding of ultimate 
facts. 

Moreover, as the space age develops, and as international problems 
respecting outer space proceed apace, the contest itself is developing 
some of its own norms. 4 Thus, a new and intriguing area of custom- 
ary international space law is unfolding. It relies initially, and is 
still based very largely, on usage or practice. Much is implicit but is 
bolstered by formal national declarations and international resolu- 
tions. Concurrently, there is also a limited development of space law 
through other and more formal processes. 

The tempo of our times, largely aided and abetted by our newest 
scientific and technological revolution, and influenced materially by 
long-ranging and significantly creative efforts in science and technol- 

3 See pages 11&-183 for a more extended analysis of "approaches" to the 
development of the law of outer space. 

4 See pages 115-175 for an analysis of the development of a customary law 
of outer space. 



ogy, has produced demands for certain uses of outer space. Pyra- 
miding practical demands have demonstrated a singular awareness 
of man's potential uses of outer space. Thus, at this time the main 
stream of man's expectations has been for reasonable — indeed, peace- 
ful — uses of outer space. 5 For, man in these tempestuous times is 
aware that he lives not only in the era of space but in the age of the 
atom. And he seeks such security in outer space as may be supplied 
by the application of law to such an environment. 

It was in these circumstances that Lieutenant Colonel John H. 
Glenn, Jr., observed in 1962 following his successful space flight: 
"As our knowledge of the universe in which we live increases, may 
God grant us the wisdom and guidance to use it wisely." 

Much the same has become an urgent article of faith for much of 
mankind. Man's predicament and his expectations have been put for- 
ward by Gerard Piel, as follows: "We have come suddenly and un- 
prepared to the fork in the road. As each day passes we lose the 
power of decision and are carried into the road that leads to no 
future at all. We cannot avert our self-destruction unless we take up 
the cause of man * * * In the knowledge that confers the capacity to 
destroy, man has gained equally the capacity to realize his humanity 
* * * " 6 It does seem clear that man's scientific and technological 
genius has provided him with the opportunity to eliminate human 
deprivations and to advance his inherent capabilities. At the same 
time he has developed capabilities equal to the task of destroying life 
and civilization as we now know it. 

The challenges to the legal profession are patently real. The inter- 
national lawyer with a subject as important and dynamic as this can 
serve many purposes. Not the least of his opportunities is the act of 
identifying problems. He may also offer tentative and occasionally 
even more definitive answers. 

A lawyer in addressing himself to a task such as this one must 
avoid the luxury of unconsciously making basic assumptions about 
the substance of his subject. It should be repeated that this is partic- 
ularly necessary where, as here, the political-legal qualities of the 
subject are so closely related. 

Because of this it is well to acknowledge that the demand for and 
growth of a law of outer space is being substantially influenced by 
man's ancient quest for security, as well as by his inherent search for 
self-realization. The primacy of security is reflected by man's unqual- 

5 See pages 114-118, 178-181, 2G3-318 for a more detailed analysis of this 
matter. As will be demonstrated, peaceful uses may include military uses when 
the latter are nonaggressive and beneficial in their employment. 

6 Piel, Science in the Cause of Man, vii ( 1961 ) . 



ified and hopeful demand for control over outer space. Early 
writings on the subject of outer space have stressed man's concern 
lest this environment be used adversely to his earthly interests. Since 
this is a central factor in man's thinking, it is hardly surprising that 
this concern has also occupied policy planners and decision makers 
ever since man's space capabilities came to be more fully realized. 
There seems to be no doubt that this aspect of outer space will con- 
tinue to occupy a nationally oriented mankind and be central to the 
existing world decisional process, thus controlling and influencing all 
other uses and thought concerning space. 

On the other hand, self-realization insists that the uses of outer 
space be as wide indeed as all of man's vastly ranging interests, 
which are international as well as national in their focus. Eestric- 
tions on the use of outer space and demands for full use will have to 
be balanced in the white flame of competing interests. 7 It is fair to 
say that the jurisprudence of interests has now arrived at outer 
space. The catalyst in these experiences, and indeed the balance 
wheel, it is submitted, will be the concept of reasonableness. 

Therefore, it is one of the fundamental assumptions of the author 
that, through the development and clarification of a law of outer 
space, certain benefits will extend to mankind. If law is capable of 
taming or modifying power in this new environment, as it has in 
many others, then great benefits to man will surely obtain. There 
could be such results as a higher degree of international security, a 
broader view of the nature of reasonable uses, and such other of 
man's essential values, which nation-states seek to supply or encour- 
age, as order, health, economic stability, scientific and technological 
advancement, an appreciation for moral and spiritual values, and the 
general welfare of the individual — in sum, all of the characteristics 
of a more enlightened age. 8 

Thus, a part of man's challenge is his capacity to learn to live with 
lively and multi-purposed space vehicles. In the interest of order — 
and perhaps of survival — he must acquire a willingness to use them 
reasonably. In this effort law has a traditional and principal role to 
play. 

In addition to the identification of goals, there is the requirement 
that agreeable legal and scientific terminology be selected with great 

7 On the jurisprudence of interests see Pound, Jurisprudence, (1959), and 
Schoch, ed., The Jurisprudence of Interests (1948). 

8 On the jurisprudence of values, see generally McDougal and Feliciano, Law 
and Minimum World Public Order 302-309 (1961) ; Dewey and Tufts, Ethics 
(1936) ; James, Essays in Pragmatism (1951). On values in the age of science 
and technology, see Rev. Theodore M. Hesburgh, "Science and Technology in 
Modern Perspective," 28 Vital Speeches 631 (1962). 



discernment. This problem is particularly critical when the subject is 
undergoing the critical developments perceivable in the one under 
consideration. Any choice of terms is not without attendant difficul- 
ties. For there is the need not only to signify precise concepts. There 
is also the need to avoid language which conveys unintended or 
undesirable connotations. 

It is necessary to avoid the use of terms which might suggest or 
imply — either in themselves or in their probable antonyms — preor- 
dained or predetermined legal consequences. In particular it has been 
necessary to select language which seeks to avoid suggesting or 
implying closed categories of legal uses. 

Involvement in an opposite approach might induce charges that 
the author was seeking to establish a law of space having all the 
hypothetical fixity of a sophisticated legal code. Nothing could be 
further from my intended purpose. It should be pointed out, per- 
haps, that one who embarks seriously upon an analysis of the devel- 
oping law of outer space is in a particularly favored position to 
acknowledge the open-ended practical uses of outer space. If this be 
true, as it unquestionably is, there is an obvious need that legal ter- 
minology — at least at the most fundamental level of concepts and 
principles — should endeavor to be no more close-ended than the prac- 
tical matters falling under its dominion. In short, there is the need to 
avoid language which might unconsciously close or predetermine the 
range of legal uses of outer space. 

This law, while yet in its formative stages, should not be burdened 
with unsupportable assumptions flowing from unduly restrictive 
legal terminology. This conclusion must be balanced against the fact 
that acceptable legal concepts and terminology are moving forward, 
even now, through the well known processes of customary and con- 
ventional international law. 

The law of outer space is developing by reason of man's thirst to 
use his new and far-reaching environment. The uses demonstrate the 
breadth of his vision, imagination, and courage. 9 It is clear that the 
terminology selected will mold and shape law's concept of things 
permitted and things prohibited. For these reasons it has been my 
decision to employ the term "reasonable" to describe the range of 
legal uses of outer space. 

The concept of reasonableness provides no final answers to legal 
problems confronting duly constituted decision makers. This permits 
the law of outer space to proceed upon both sound practical and 
normative considerations. 



9 See pp. 88-123 dealing with the practical uses of outer space. 



"Reasonableness" has a long and significant tradition in interna- 
tional law and in the municipal laws of nations. Its strong normative 
content takes into account the enumerated elements of the social com- 
plex. On practical, as well as theoretical grounds, it seems best 
equipped to deal with and even manage the direction which mankind 
expects the law of outer space to follow. Through reference to this 
concept the decision maker is accorded a scope of authority broad 
enough to secure fundamental needs and is not unduly inhibited by 
the demands of past logic and factual uncertainty as to the future. 
Since historically it has provided abundant guidance to law when 
conceived of as a growing institution in a living society, it may be 
predicted that for the law of outer space "reasonableness" will be an 
eminently suitable guide. All significant community needs can read- 
ily be subsumed under its broad umbrella. Thus, the theoretical and 
practical basis for the development of the law of outer space may be 
asserted to depend upon the reasonable uses of that dimension. 

The doctrine of reasonable use of outer space not only takes into 
account the fact that law depends on both logic and experience, it 
also illustrates the fact that law is clear evidence of the ongoing 
concession by force to reason. Moreover, it takes into account the fact 
that law and policy are inextricably intertwined — and so far as outer 
space is concerned, the interrelationship is particularly profound. 
The concept avoids unpleasant antonyms. It supports the conviction 
that a sound approach to this subject must eliminate the appearance 
as well as the fact of seeking to preempt a closed-end area of law. It 
prevents the early development of conceptual brackets — between a 
fixed Scylla and Charybdis — by inhibiting any kind of a conceptual 
straitj acket for the dynamic qualities of a legal regime for outer 
space. 

Through the concept of reasonableness the emerging law of outer 
space can obtain the benefits, so well known throughout the entire 
world, derived from common law processes and experience. It also 
permits ready access to the wisdom of the civil law system and to the 
common thread of reasonableness which permeates the world's other 
great legal systems. Thus, through the guidance of "reasonableness" 
one may take into account all of the forces of the social complex as 
they are brought to bear on the rapidly evolving and potentially 
significant law of outer space. 

1. National and International Purposes to be Served 

In a chronological sense the views expressed on the development of 
an international law of space during the past decade have demon- 

791-^105—66 2 



8 

strated a strong fixation on the concept of sovereignty. 10 A second, 
and equally significant approach to the subject of outer space focuses 
on its being "devoted exclusively to peaceful and scientific purposes 
* * * " u The foregoing language of Ambassador Henry Cabot Lodge 
to the Political Committee of the United Nations on January 14, 
1957, was the forerunner to subsequent resolutions adopted by the 
General Assembly of the United Xations creating committees on the 
"Peaceful Uses of Outer Space." 12 

"While it has long appeared that the speculations and recommenda- 
tions of lawyers concerning sovereign boundaries between airspace 
and outer space were premature, the discussions have served at least 
one constructive purpose. These discussions have called attention to 
the primary fact that nation-states have the same, if not greater, 
concern for safety and security in outer space as they have in air 
space and the surface and subsurface dimensions of the earth. 

It probably does not miss the mark very far to assert that security 
in one form or another is an almost innate human need. States have 
as one of their most fundamental functions the providing of order, 
or security, to their peoples. In the international arena the nation- 
state has as one of its principal responsibilities the offering of pro- 
tection against alien or foreign activities prejudicial to its members, 
as individuals, to the people as a body politic, and to the state as a 
legal abstraction. 

These rights have long since been acknowledged by international 
law. They are based upon the inherent right of a state to exist. From 
this primary right flows the equally important inherent right of a 
state to engage in reasonable action to defend itself and to achieve 



10 See the materials collected in Space Law, A Symposium, Special Committee 
on Space and Astronautics, United States Senate, 85th Cong., 2nd Sess., Wash- 
ington (1959), hereafter cited: "Space Law, A Symposium;" Legal Problems of 
Space Exploration, A Symposium, Committee on Aeronautical and Space 
Sciences, United States Senate, Document No. 26, 87th Cong., 1st Sess., Wash- 
ington (1961), hereafter cited: "Legal Problems of Space Exploration;" Soviet 
Space Programs: Organization, Plans, Goals, and International Implications, 
Committee on Aeronautical and Space Sciences, United States Senate, 87th 
Cong., 2nd Sess., Washington (1962), hereafter cited: "Soviet Space Pro- 
grams ;" Survey of Space Law, Select Committee on Astronautics and Space 
Exploration, United States House of Representatives, Document No. 89, 86th 
Cong., 1st Sess., Washington (1959), hereafter cited: "Survey of Space Law." 
See also the papers collected in the Proceedings of the First, Second, Third, 
and Fourth Colloquia on The Law of Outer Space (1959-1963). 

11 36 Department of State Bulletin 227 (1957). 

12 See pp. 183-230 for the development of legal principles and rules on outer 
space in the United Nations. 



the requisite security from legally nonpermissible acts of other 
states. 13 

From this it will be seen that there is a mutuality of interests 
between people per se and people organized in political institutions 
to conserve and maintain their ongoing independence and security. 
Where, in terms of space capabilities, there are nation-states of not 
too greatly disparate potentials, there is at least a realistic opportun- 
ity for accommodation based on mutuality of interests rather than 
on an expectation of unilateral destruction by one of the other. 
Based on mutuality of interests, the price to pay for such an effort is 
one which constantly requires appraisal and assessment by national 
leaders. 

Barring an excessive imbalance — present or future — and the 
implementation of temptations facilitated thereby, today's preca- 
rious balance of terror emphasizes the necessity for a mutuality of 
interests in international peace and security. For, if there is to be a 
law of outer space it must be based upon the perception that mutua- 
lity of national interests will in fact be served. If there is no reason- 
able prospect for a mutuality of interests based on security needs, it 
is not likely that there could be much effective space law. Further, it 
is not likely that the mutuality of interests in peaceful uses — impor- 
tant though that may be — would overcome a void left by the nonex- 
istence of mutuality in security. 

If this be true it is clear, in the present world where nation-states 
not only make demands upon international law, but also participate 
in the resolving of such demands, that it behooves such states to put 
forward their demands from a suitable power base. That the entire 
power structure of the nation-state includes its recognition of and 
conformity to principles and rules of law is sometimes overlooked. It 
ill serves the authoritative decision maker in the age of space to over 
look the role and function of law as an important part of the total 
decisional involvement. Further, since the age of space is essentially 
the politicized age of science and technology, it also is necessary for 
those engaged in the management of the decisional process to take 
full account of the comparative scientific and technological achieve- 
ments and potential of the respective national groupings. 

The importance of science and technology to the development of 
the law of outer space should be readily understood. 14 Not only has 
the tempo of the social complex been vastly accelerated; science and 



13 See pp. 116-118, 168-182, 218-250, 289-331 for an analysis of the legal rights 
of a state to maintain and enforce international peace and security and to engage 
in measures of self-defense. 

M See pp. 106-109, 319-328, 431-432 for a more detailed analysis of this point. 



10 

technology also have enormously extended man's control over his 
multidimensional environment. Man's new scientific and technologi- 
cal equipment have provided him with the occasion to extend his ego 
into space. His ego and his demand for international peace and secur- 
ity have not limited his outward ranging drives. As is well known, 
he now seeks more specific control over his total environment, and 
measured in directions, this now encompasses lateral movements into 
the high seas and downward into inner space, both water and land. 

Specifically, in recent years, man acting through the political ma- 
chinery of government has made ever increasing claims to extend his 
authority outward from his primary land base. This is true for the 
surface of the seas, superjacent airspace, for the subsurface seas, for 
management of the surface of the continental shelf, and for effective 
exploitation of areas lying below the continental shelf. 

It is clear that man is reaching outward, downward, and upward. 
His capacity to exploit such areas raises substantial question as to 
inclusive or exclusive uses of such areas. National interest ap- 
proaches the matter of use variously. Thus, the United States has 
opposed the existence of a larger "nuclear club" which presumably 
would enlarge national uses of outer space. At the same time it has 
supported demands at the United Nations and elsewhere for broad 
peaceful uses of outer space. 

Two generalizations can be made. First, in the context of national 
security, the problem is principally twofold. What will be the sub- 
stance of reasonable use? By what means will the law of reasonable 
use develop ? 

Second, in the context of the actual use of space as an environment 
for the wide-ranging development of man's inherent qualities, the 
problems appear to be very much the same. What will be the sub- 
stance of reasonable use to achieve the blossoming of man's capabili- 
ties ? By what practical means will the law of reasonable use develop ? 

The interaction of these two forces, namely, security and utility — 
one restrictive and from a political point of view largely cautionary 
in its orientation — and the other motivated by an awareness of affirm- 
ative opportunities, and hence designed to achieve the very broad- 
est peaceful uses of outer space — provides the essential dilemma 
confronting the development of space law. This condition has contrib- 
uted at present to the development of the law along extremely prac- 
tical, if somewhat limited, lines. 

Broad analogies to the international law of the sea and to the 
international law of airspace — each being quite opposite the other — 
have received some acceptance by those concerned with the formula- 
tion of the international law of outer space. This has resulted from 



11 

serious efforts to use certain insights and practices derived from 
these areas in formulating the principles and rules of outer space. 
This has been based on the fact that the current regimes of the sea 
and the airspace serve fairly well both national and international 
purposes. Thus, to the extent that comparable or approximately sim- 
ilar conditions seem to exist for outer space, it is but reasonable to 
expect that earlier practical experience — wherever it may be ob- 
served — will be incorporated to some extent into the practice and 
usage of outer space. This incorporation is preliminary to but direc- 
tive of the path of space law. 

Presently the international law of the sea and the international 
law of airspace contribute to common national interests in security. 
Thus, it is generally agreed that both customary and conventional 
international law accords to a subjacent state full sovereign rights in 
its superjacent airspace. This includes the right to exclude aircraft 
and other vehicles from such space. This is true even though there is 
no precise understanding as to the ultimate boundary of the airspace. 
The clear right to exclude, when coupled with adequate policy and 
power, conserves the security of the subjacent state. 

On the other hand, the law of the sea contemplates two major 
zones, namely, territorial waters over which the state exercises full 
sovereign rights, and, the high seas. Sovereignty over territorial 
waters includes the right, subject to certain qualifications, to exclude 
ships and other vehicles from such space. The most notable qualifica- 
tion is the right of innocent maritime passage. The airspace over 
territorial waters is treated in the same way as airspace over national 
land areas. Such rules, just as those applicable to land areas and su- 
perjacent airspace, confirm the security interests of nation-states in 
these particular environments. 

With the advent of modern science and technology and the mini- 
mization of ancient limits on time and space, states have for defen- 
sive purposes extended their historic controls — security-oriented and 
of a limited nature — into the high seas and to the airspace superja- 
cent to such seas. Such zonal controls may not purport to subject the 
high seas to the sovereignty of any state, and pursuant to Article 2 
of the now operative Geneva Convention on the High Seas, 1958, 
nation-states are assured freedom of navigation, freedom of fishing, 
freedom to lay submarine cables and pipelines, freedom to fly over 
the high seas, and other freedoms recognized by the general prin- 
ciples of international law. 15 

15 Franklin, U.S. Naval War College International Law Studies, 1959-1960, 
203 (1961). Compare, Reiff, The United States and the Treaty Law of the Sea 
(1959). 



12 

This is true for the high seas, even though the extent of boundaries 
— just as in the case of the ultimate ranges of sovereign airspace — is 
not universally agreed to. The existence of precise physical limita- 
tions on boundaries is not the important consideration here. The 
important consideration is that certain boundary limitations admit- 
tedly do exist, that such limitations are very directly related to con- 
ceptions of security, that security is a conceptual seamless web of 
major political and legal concern to all states, and that international 
law purports to protect the rights of states to engage in appropriate 
security measures, and, in fact, international law does recognize in- 
herent security rights of states. Just as in a military sense space has 
been linked to airspace as "a continuous and indivisible field of 
operations,*' 16 so also the concept of security knows no dimen- 
sional limitations. International law acknowledges the right of na- 
tional security in all environments. 17 

Although modern space technology had its inception in the devel- 
opment of military rockets, it is common knowledge that a vast 
amount of space technology results in the manufacture of consumer 
goods beneficial to the general public. In fact one of the justifications 
for the expenditure of large public funds for space technology is 
that there is a spin-off of derivative consumer benefit from on-going, 
publicly supported, space research and development. 

Space technology has provided a great variety of materiel and 
technique which have both military and nonmilitary applications. In 
so far as it is the firm national policy of the United States not to 
initiate offensive military activity, the military applications of exist- 
ing equipment must be considered to be for defensive purposes, that 
is to say, for peaceful nonaggressive military and beneficial 
purposes. 18 The fact remains that space technology has created 
equipment which lends itself to hybrid purposes. 

Just as space vehicles can serve beneficial commercial and indus- 
trial purposes in such fields as meteorology and weather forecasting, 
communications, observation, and navigation, so it is equally clear 
that they have a vast military potential. One of the problems of the 
law of outer space is to catalogue the legal uses of such vehicles in 
order to provide the maximum range of benefit to mankind. In this 

"General Thomas D. White, DSAF, "Air and Space Are Indivisible," 41 Air 
Force 40 (March 1958). 

17 For a more detailed analysis of the international legal aspects of this obser- 
vation, see pp. 102, 113-116, 168-182, 249-250. 

18 The thesis that the dividing line between aggressive and defensive conduct 
is essentially a matter of intent and conduct has been accepted here. See pp. 
34-44, 53, 118, 178-194, 320-337, infra, for a fuller discussion of this thesis. 



13 

connection it is clear that experience with ocean-going vessels is of 
value. Here the law has been able to distinguish on the basis of func- 
tion and within this category on the basis of purpose between com- 
mercial passenger vessels and public military vessels. The mere fact 
that public military vessels may be used both for defensive, e.g., se- 
curity purposes, as well as aggressive purposes, has not served to elim- 
inate the use of such vessels or to lead to the assertion that their 
mere existence or their presence in some areas constitutes a violation 
of international law. One of the problems which is closely related to 
security in outer space deals with the ability to distinguish nonmili- 
tary from military uses and to ascertain permitted physical 
locations. 19 

These basic facts were noted by President Eisenhower's Science 
Advisory Committee in 1958 : "There is the defense objective for the 
development of space technology. We wish to be sure that space is 
not used to endanger our security. If space is to be used for 
[harmful] military purposes, we must be prepared to use space to 
defend ourselves." 20 

In summary, the new dimension of outer space will be used for a 
number of purposes, including such reasonable uses as peaceful and 
scientific uses, advancement of security requirements, and for 
blurred, hybrid, or hyphenated peaceful-security purposes, as op- 
posed to aggressive military objectives. There is the additional possi- 
bility that a state might unconscionably use space for unreasonable 
purposes, that is, aggressive military objectives. Any meaningful 
legal analysis of outer space must take these factors into considera- 
tion. Further, a balancing of these alternate uses must be resolved 
largely on the ground of reasonableness and subject to sanctions pro- 
portionate to practical needs. 

These factors in turn must be weighed in the context of national 
goals and needs, community goals and needs, and legal concepts com- 
mon to modern international law. Based on these considerations, and 
others, it will be possible to put forward certain governing principles 
and rules. Further, with these points in mind, it will be possible to 
suggest some tentative estimates as to the direction which the emerg- 
ing law of outer space will most probably take. 

19 See pp. 111-118, 178-181, 268-277, infra. 

20 Introduction to Outer Space, An Explanatory Statement Prepared by the 
President's Science Advisory Committee 1 (1958). The Chairman of the Com- 
mittee was Dr. James R. Killian. In prefatory remarks President Eisenhower 
made a policy statement calling for nations "to promote the peaceful use of 
space and to utilize the new knowledge obtainable from space science and 
technology for the benefit of mankind." 



14 

A part of the problem is to recognize that national and community 
interests may be quite relative to time and place and that frequently 
their goals are consistent and interrelated. Certain national interests 
may be stronger than other national interests. Thus, while security 
or self-defense is a primary national interest, there is still the ques- 
tion of whether it will be implemented by unilateral or collective 
means. And assuming that this question has been resolved, there is 
still the question of the degree of force which the defending entity 
will bring to bear on the offending entity. Usually it will be found 
that the degree of interest in self-defense manifested by the threat- 
ened nation will be related directly to the proximity of the danger 
to the threatened nation. That is, an attack upon the homeland may 
be regarded as more serious than an attack upon a distant possession. 
Or, an attack upon a distant possession might be regarded as more 
grievous than an attack upon an unreliable ally. In a practical sense, 
prior to the age of outer space and the atom, the notion of self-de- 
fense has always been strongest respecting contiguous areas, which 
also were easier to defend. 

In view of the contraction of time and space the concept of self-de- 
fense is now a feasible nondimensional concept. National strategy 
has thus been much influenced by military capabilities in space. As a 
result, mutual international interests demand that the concepts of 
space security and self-defense be equipped with meaningful sub- 
stance, including adequate safeguards against improper use. 

Despite the doctrine of proportionality 21 which has received re- 
cently increasing attention in the Free World, there are at the mo- 
ment no clear assurances that it has been accepted by Communist 
states. This fact highlights the need for alternatives to power politics 
approaches to international problems. Alternatives exist in processes 
designed to mitigate by pacific means "acts of aggression or other 
breaches of the peace." 22 However, until the entire world has dem- 

21 Secretary of State Webster wrote to Mr. Fox on April 24, 1841, that "noth- 
ing unreasonable or excessive [must be done], since the act, justified by the 
necessity of self-defense must be limited and kept clearly within it." II Moore, 
Digest of International Law, Sec. 217, at p. 412 (1909) ; compare Secretary of 
Defense Robert S. McNamara, "The United States and Western Europe," 28 
Vital Speeches 626-629 (1962), Deputy Assistant Secretary of Defense Alain C. 
Enthoven, Department of Defense Press Release 2-12, Feb. 11, 1963. Jessup, A 
Modern Law of Nations 158 (1952) says: "National justifications for the lesser 
uses of force have been generally couched in legal terms — self-defense, defense 
of national lives and property, reprisals, retaliation — and the customary law 
developed tests of the propriety of such conduct." Compare, Hindmarsh, Force 
in Peace (1933). 

22 U.N. Charter, Arts. 1(1), 2(3), 33. 



15 

onstrated with credible evidence a willingness to make use of pa- 
cific third-party judgments in international disputes, it is clear that 
the legal doctrines of security and self-defense as presently consti- 
tuted, will have significant applicability to the law of outer space. 
The concepts of self-defense and security will be strong because of 
the importance of the interests being protected. 

While present emphasis no longer considers the subject of sover- 
eignty in outer space to be of first importance, yet the fact that this 
subject received almost exclusive attention on the part of students of 
the law several years ago is instructive. 23 Such discussions illustrated 
an initial and important concern for national control over outer 
space. Such thinking undoubtedly was based on the view that such 
control would or might further national security in man's whole en- 
vironment. Yet, while current discussions have turned from this fixa- 
tion on "sovereignty," there is still a fundamental interest in protect- 
ing man against inroads upon his security from outer space. Man's 
earth-bound orientation will influence and control the substance of 
the law of outer space. This is true not only because of his interest in 
security but it also reflects his growing belief that outer space, 
through its reasonable and peaceful uses, can serve many of his fun- 
damental needs. 

Thus, outer space provides a remarkable challenge to man as man. 
It challenges man as scientist. It also provides an intense and satisfy- 
ing challenge to the lawyer, for it is his special task to extend con- 
cepts of justice and order throughout the totality of man's environ- 
ment. Under these circumstances it does not seem fitting that lawyers 
— more by default than by overt conduct — should permit the man- 
agement of these worthy goals to be delegated to others. 

a. National and International Capabilities in Outer Space 

International law as the product of man's intellect is influenced by 
the forces of the social complex, including man's appraisal of power. 
With the advent of the atom, if not before, and in any event prior to 
the space age, it was becoming clear that intellectual pre-eminence — 
particularly as measured by scientific and technological achievement 
— was a very substantial factor in overall national strength. 



23 Compare, for example, Welf Heinrich, Prince of Hanover, "Air Law and 
Space," 5 St. Louis Vniversity Law Journal, 11-69 (1958) which first appeared 
in Germany in 1953 ; John C. Cooper, "Legal Problems of Upper Space," 1956 
Proceedings of the American Society of International Laiv, 85-94; Lipson, 
Outer Space and International Law, 1-10 (1958) ; Goedhuis, "Sovereignty and 
Freedom in the Air Space," 41 Transactions of The Grotius Society, 137-152 
(1956). 



16 

Leadership in science and technology has become a primary con- 
sideration in ascertaining the total power picture of national states. 
In the world's present context of unstable equilibrium or balance of 
terror, it is clear that "Science and technology enter into almost every 
policy judgment that must be made in the day-to-day conduct of 
foreign affairs." 24 

An understanding of the outer space capabilities of nations and 
groups of nations is fundamental to an understanding of the policy 
considerations affecting the substance and direction of the emerging 
law of outer space. The influence of nations is disproportionate. 
Therefore, their contributions are bound to be somewhat unequal in 
the direction given to this new area of law. 25 

By reason of the great costs and stresses involved in advanced 
space research projects, only a nation rich in creative individuals, 
human energy, and raw materials can qualify as a leader in the race 
to exploit outer space. Nonetheless, the current attitude of mankind 
is reflected in claims for the broadest possible distribution of the 
benefits deriving from the peaceful and scientific uses of outer space 
— claims which have been asserted by nations without respect to 
their potential in space science and technology. 

As a result of these demands, the more favorably situated states, 
both on their own initiative and as a result of international opinion, 
have encouraged cooperative participation by all states in an effec- 
tive exploitation of man's newest dimension of his universe. The coop- 
eration has taken the form of joint national projects covering many 
subjects and with benefits widely distributed across the globe. This 
has led to wide ranging private efforts, such as the International 
Geophysical Year, 1957-1958, and well-known private commercial 
developments. The cooperation has also taken the form of sharing of 
information and materials with individuals and national govern- 
ments where limited space science and technological capability has 
resulted in slow progress. 

Men of science and technology continually point to the fact that 
their subject matter is universal, knows no boundaries, and can be 
dangerously repressed by efforts at artifical control. They seek a very 
high degree of communication in the hope that the reciprocal 
sharing of information will permit man to more fully master the 
unknowns of his universe. Their purpose — one which stands very 

24 Berkner, "Earth Satellites and Foreign Policy," 36 Foreign Affairs 230 
(1958). 

- For a description of national space interests see Odishaw, ed., The Chal- 
lenges of Space 155-232 (1962), and December 1962 U.N. Docs. A/C.1/PV.1289 
through A/C.1/PV.1298. 



17 

high on man's scale of values — is to permit him to master his envi- 
ronment. Lord Hailsham, British Minister of Science, has put it this 
way: "Perhaps our most essential human characteristic is the desire 
to conquer our environment by conscious and cooperative effort. In 
one sense this is what science — and in another sense this is what poli- 
tics — is about." 26 

Illustrative of the need for a wide cooperation, if there is to be an 
effective exploitation of scientific data, is the example of weather 
forecasting. Here the entire success of a cooperative program and the 
utilization of accumulated evidence depends upon the obtaining of 
data from the far-flung corners of the world, the rapid communica- 
tion of gathered information to a few centrally situated data centers, 
fast analysis, and immediate dissemination to the ultimate consumer 
— whether he be conversationalist, farmer, sailor, fisherman, busi- 
nessman, strategist, tourist, or another. 

At the present time leadership in space science and technology 
appears to be reserved to two states — the United States of America 
and the Soviet Union. This leadership is based essentially on their 
economic wealth, since many other countries, notably in Western Eu- 
rope, possess other characteristics which enable them to aspire to the 
rank of leadership in outer space. It is highly significant that in 
June of 1962, a European Space Research Organization (E.S.R.O.) 
was created by eleven states, and that in the preceding April, a Con- 
vention establishing a European Organization for the Development 
and Construction of Space Vehicle Launchers (E.L.D.O.) had been 
entered into by seven states. 27 



26 "The Imperatives of International Cooperation," 18 Bulletin of the Atomic 
Scientists 9 (Dec. 1962). According to the American scientist, William H. 
Forbes, "Scientists are already considerably more internationally minded than 
most other groups and are therefore easier to make contact with, especially if 
the contact is made by scientists." "The Role of Science Attaches," 13 Bulletin 
of the Atomic Scientists 275 (Oct. 1957). "Science is the one common language 
understood the world over. By exchanging scientific viewpoints and working on 
common scientific problems . . . men of all nations may be drawn closer to- 
gether. The endless frontiers of science, now stretching to the stars, can pro- 
vide rich opportunities for men to seek a common understanding of the natural 
forces which all men must obey and which govern the world in which all men 
must live together." Killian, Strengthening American Science, A Report of the 
President's Science Advisory Committee 27-28 (1958) ; compare, George B. 
Kistiakowsky, "Science and Foreign Affairs," 42 Department of State Bulletin 
278 (1960), who asserted "[S]cience is today one of the few common languages 
of mankind ; it can provide a basis for understanding and communication of 
ideas between people that is independent of political boundaries and ideas." 

^Odishaw, supra note 25, at 155. See pp. 81-84 following for detail. It was 
anticipated that thirteen states would participate in this program. For a com- 



18 

Additionally, as is well known, at least France, which participates 
in the two foregoing programs, has sought an independent nuclear 
capability in outer space. There can also be no doubt that the Chinese 
People's Republic (Red China) will one day make claims to an im- 
proved status in the area of space science and technology. 

It must be recognized that present and future scientific and tech- 
nological competence will affect very materially the political and mil- 
itary postures of nations. This in turn will have the most fundamen- 
tal impact upon the substance of the law of outer space. 

Because of the extreme importance of this consideration — which is 
central to an analysis of this subject — it will be necessary to explore 
the present and probable future comparative scientific and technolog- 
ical condition of the Free World with that of the Soviet Union. 

The scientific and technological capabilities of a nation-state or 
group of allies will have a direct bearing on the substance of space 
law acceptable to them. Thus, a state standing high in scientific and 
technological capabilities would presumably benefit materially from 
an opportunity to exploit its capabilities. A state might accomplish 
this by maintaining a policy of the largest and freest use of outer 
space. In a legal context this would then argue for emphasis upon 
freedom of use and would oppose limited or restricted uses. In short, 
why should a state possessing scientific and technological proficiency 
in space support a legal theory respecting the use of outer space 
which would deny or restrict its right to exploit its scientific and 
technological capabilities? On the other hand, a state which does not 
possess large space technology assets might argue for a more limited 
use of outer space, thus seeking by legal and political devices to 
achieve a certain negative equality. In this fashion such a state 
might seek to avoid its practical shortcomings. The latter state 
might, because of its practical limitations, feel that it was to its in- 
terest to make political-legal claims whereby legal limitations would 
be impressed upon scientifically and technologically more advanced 
nations. 



ment on an American program in 1960 to cooperate on space activities with 
Japan, the United Kingdom, and NATO countries, see Merchant, "Importance 
of the Space Program in International Relations," 42 Department of State 
Bulletin 215-216 (1960). For a report setting forth national space activities and 
cooperative efforts by thiry-five countries, see U.N. Doc. A/AC. 105/7 4-76 
(1962). See also nineteen "National Reports on Space Research Activities," 11 
COSPAR Information Bulletin 3-106 (1962). Many cooperative programs be- 
tween the United States and other countries have been initiated by the National 
Aeronautics and Space Administration (NASA). 



19 

(1) Free World Science and Technology ; An Appraisal 
If leadership in practical space science and technology is so impor- 
tant to such national interests as security and the widest possible 
peaceful and beneficial use of outer space, what then is the present 
and expected future position of the United States and the Free 
World in the space contest? It is the judgment of experts that the 
Free World is in the vanguard in the space contest, and, moreover, 
that the United States is in a pre-eminent position, despite some un- 
evenness of past performance. 

The most sober judgment that can be made at this time as to the 
range of space capabilities of the Free World and its adversaries is 
that neither side possesses a lead so commanding as to cause one side 
or the other to embark upon reckless space policies. Their respective 
capabilities at the present are not so disparate as to negate or destroy 
the existing mutuality of interest in the employment of space ve- 
hicles for nonaggressive, i.e., peaceful and beneficial purposes. 28 
Further, it now appears that no space contestant presently has, nor 
can it reasonably anticipate, an absolutely preponderate lead in the 
space race and that neither adversary expects an exclusive and sig- 
nificant breakthrough on the scientific and technological front. In 
view of these conclusions it would appear that no country at the 
present time — and probably in the future — could base a policy upon 
a claim for a monopoly of the use of space or for unrestricted ag- 
gressive uses of space. 

The evidence in support of this view must be subjected to the most 
careful analysis. The United States historically has demonstrated a 
keen interest in scientific and technological innovation. And it has 
sought to maximize the use of its ideas and products. Thus, the pre- 
revolutionary experiments of Benjamin Franklin and his interest in 
research have left a strong imprint upon our national image. The 
coming of the industrial revolution to the United States and the 
pioneering efforts required to convert raw resources into consumer 
goods stressed the role of the practical man. The establishment of 



28 Dr. Hugh L. Dryden, Deputy Director of the National Aeronautics and 
Space Administration, has outlined the general objectives of the U.S. space 
program as follows: "(1) to study the space environment by scientific instru- 
ments of many types launched into space by sounding rockets, space probes, 
earth satellites and artificial planets; (2) to begin the exploration of space and 
the solar system by man himself; (3) to apply space science and technology to 
the development of earth satellites for peaceful purposes to promote human 
welfare; and (4) to apply space science and technology to military purposes 
for national defense and security." The National Significance of the Augmented 
Program of Space Exploration 2 (1961). 



20 

universities and scientific and technological institutes was uniformly 
greeted with vast pride and approval. Their graduates were 
regarded as a valuable resource in the expansion and exploitation of 
the national potential. As individuals they contributed largely to the 
augmentation of national prestige and power. Although at first, as 
practical people in a new land, they were frequently more interested 
in technological applications than in pure research, yet in later years 
they became thoroughly aware of the importance of pure science for 
its own purposes. 

With the coming of the Second World War, science and technology 
were diverted from their usual concern with peaceful goods and serv- 
ices and were enlisted in the military cause of winning a just 
peace. 29 The many abstract scientific problems, including those at- 
tendant to the splitting of the atom, and the remarkably successful 
answers which were forthcoming, provided sound support for the 
view that America and Americans possessed a superior competence 
in scientific and technological matters. 

This conviction, which had engendered some post-war compla- 
cency, suffered a severe shock with the launching of Sputnik I. This 
achievement, according to Berkner, "demonstrated to Americans 
what they refused to believe before, that they are in a race for intel- 
lectual leadership when they hadn't realized that there was a race, or 
even that another nation had the capability to challenge their tech- 
nology. In the complacency of our assumed technological lead, we 
have confused our high standards of living and material prosperity 
with intellectual stature. It is an extravagant and dangerous 
mistake." 30 

A balanced view of the present American position in the space 
race must take into account many considerations. The science and 
technology of the Soviet Union historically has not been so advanced 
as that of the United States, but in recent years much progress has 
been made. Whereas American concentration during the period fol- 
lowing World War II down to Sputnik I was essentially consumer 
oriented, the Soviet concentration following that war was more 
proximately devoted to military and heavy industrial needs. During 
the period since 1947, Soviet advances in certain areas, including mil- 
itary and space technology, have been very rapid. The Soviet capa- 
bility in the area of large rockets and heavy boosters for space ve- 
hicles has exceeded that of the United States, but the latter is now 
concentrating vast resources in this area and good progress is being 

29 Bush, Modern Arms and Free Men, 27-71 (1958). 

30 Berkner, supra note 24, at 223. 



21 

made. Overall advancement in both nations is to a large extent a 
matter of policy and intent, and while the Soviets have been willing to 
devote almost exclusive attention to military technology, the United 
States is seeking to allocate its resources between nonmilitary 
and military needs. At the present the competition for excellence in 
space is announced policy on the part of both nations, and intellec- 
tual attainment in science and technology is recognized as a primary 
national objective. 31 The space race has, in fact, produced a myriad 
of wonders never before enjoyed in man's long and turbulent history. 

An appraisal of national scientific and technological capabilities is 
not an easy task, if for no other reason than the vastness of the 
subject. The difficulty is enlarged by reason of the fact that national 
prestige and power are so intimately related to such capabilities. 
Unique leads in specialized fields may contribute disproportionately 
to notions of prestige and power, whereas a more balanced appraisal 
would suggest other perspectives. 

Thus, in the United States it has long been recognized that "the 
strongest scientific program is the program with the greatest 
breadth and scope. It is impossible to predict from which quarter the 
next scientific advance will come; but we can try to make sure that 
the Nation has able people at work across the whole scientific 
frontier." 32 This conclusion is based largely on the conviction, 
broadly held among scientists, that science is "so completely, and so 
unpredictably, interconnected that it is necessary that the entire 
front advance as a whole; and that it is both silly and self-defeating 
to attempt to force too deep advances on narrow segments." 33 

At the outset it is to be acknowledged that the launching of a 
man-made object into outer space, and particularly orbiting such a 
vehicle beyond the gravitational attraction of the earth, is a major 
achievement. Only nations possessing high scientific, technological, 
and material resources are able to claim such accomplishments. 
That both the United States and the Soviet Union possess the mini- 



31 President Kennedy in his September 13, 1962 speech said that "no nation 
which expects to be the leader of other nations can expect to stay behind in 
this race for space." And, "I regard the decision last year to shift our efforts in 
space from low to high gear as among the most important decisions that will be 
made during my incumbency in the office of the Presidency." On May 25, 1961, 
President Kennedy had announced an accelerated U.S. space program. 

32 Strengthening American Science, supra note 26, at 2. 

33 Warren Weaver, "A Great Age for Science," in Goals for Americans, The 
Report of the President's Commission on National Goals, 111 (1960). Compare, 
Thomas J. Watson, Jr., "Technological Change," Ibid., 193-204. 



22 

mum capabilities to achieve such successes is a well known fact. 34 
Some doubt has been expressed, however, whether a single nation 
may be able to muster sufficient resources for extended manned 
flight, or at least, without prejudicing other legitimate national 
goals. 

Thus, an appraisal of their respective capabilities in science and 
technology must be directed not only to gross competences but also to 
specialized capabilities. For purposes of analysis, American scientific 
and technological strengths will be discussed first. 

On October 9, 1957, President Eisenhower, after offering his con- 
gratulations to Soviet scientists for their successful orbiting of a 
man-made satellite, stated "I consider our country's satellite pro- 
gram well designed and properly scheduled to achieve the scientific 
purposes for which it was initiated.'' 35 In the intervening years there 
have been many public and private appraisals of relative specific 
achievements of U.S. and Soviet space programs. 

James R. Killian, Special Assistant to President Eisenhower for 
Science and Technology, made the following appraisal of U.S. tech- 
nology on January 7, 1958 : "The United States today is technologi- 
cally strong and growing stronger. I do not believe that we have lost 
out technological leadership nor that we are predestined to lose it in 
the f uture — provided we increase our technological zest and audacity 
and we do not fail to remedy our weaknesses. The launching of 
Sputnik has given many people the idea that the Russians suddenly 
have complete technological superiority over us. This impression is 
wrong." 36 

He made the following comparison with Soviet accomplishments: 
"What Sputnik has shown is not that leadership has passed from the 
U.S. to the U.S.S.R. but that we must expect in the future more 
instances of Russian challenge to our scientific leadership. Sputnik 
has shown that the U.S.S.R. is a very serious competitor in the tech- 
nological field. She has not passed us yet, but she has a strong will to 
do so." 37 He summarized his views as follows : "If we fulfill our 



34 President Eisenhower in referring to the Soviet's successful launching of 
Sputnik I said "The Soviet launching of earth satellites is an achievement of 
the first importance, and the scientists who brought it about deserve full credit 
and recognition." "Science in National Security," 37 Department of State Bulle- 
tin 820 (1957). 

35 "Summary of Important Facts in Earth Satellite Program," 37 Department 
of State Bulletin 674 (1957). 

36 Killian, "Maintaining the Technological Strength of the United States," 38 
Department of State Bulletin 187 (1958). 

37 Ibid. 



23 

potential for skill, talent, education, and quality, if we can give full 
recognition in our national life to the importance of emphasizing 
quality and of achieving intellectual preeminence, both for our inter- 
nal benefit and our external position, there would appear to be no 
real impediment to our steady technological advance." 38 His judg- 
ment was based on the American pattern of education, her technolog- 
ical facilities, and the maturing skills and freedoms of American 
industry. Explicit was his faith in the productive capabilities of free 
and dignified individuals. 

Dr. Killian singled out for particular praise American leadership 
in the fields of pure nuclear physics including its military and gener- 
al industrial implications. In his view American capability in low- 
energy nuclear physics was undisputed. He also credited the United 
States with leadership in "high-speed calculating machines, polymer 
chemistry and its applications to plastics and synthetic fibers, solid- 
state physics and its applications to transitors, and many other 
fields." 39 

His appraisal of Soviet accomplishments rated them high in high- 
energy nuclear physics, including the possibility of their achieving 
excellence in that field, and credited them with good competence in 
oceanography, rocket propulsion, theoretical mathematics, space med- 
icine, and some fields of electronics. 40 

In December of 1958, Dr. Killian, as chairman of the President's 
Science Advisory Committee, appraised American scientific leader- 
ship in these words : "No one should infer from this report that U.S. 
science is beset with fatal flaws or deficiencies. Actually, it has a 
scope and depth unequaled anywhere in the world. In less than a 
generation, the U.S. has wrested scientific leadership from it birth- 
place, Europe, and since 1945 over half of all Nobel prizes in the 
sciences have been awarded to Americans. The Federal Government 
has played an important role in this achievement. But continued 
leadership in science will require a more diligent and farsighted 
effort on the part of Government — as the largest supporter of re- 
search — to see that its influence on U.S. science is informed and 
guided by wise and coherent policies." 41 

In January, 1960, Under Secretary of State Livingston Merchant 
appeared before the House Committee on Science and Astronautics 



38 ma., at 190. 

39 Ibid., at 187. 

40 Ibid. 

41 Strengthening American Science, supra note 26, at 3. (Italics added.) 

791-405—66 3 



24 

and appraised the United States space program. It was his view that 
while the United States was "behind the Soviet Union in total outer- 
space achievements, a balanced appraisal indicates substantial and 
significant achievements on our own part * * * [0]ur program of 
space science and its practical applications appears to be sounder and 
broader than that of the Soviet Union. What we have done and are 
continually doing in the many fields of modern science and technol- 
ogy, in addition to outer space, makes absurd any contention that 
scientific and technological leadership on any broad front has passed 
to the Soviet Union." 42 Further, "Our own achievements negate any 
contention that scientific and technical leadership on any broad front 
has passed to the Soviet Union." 43 

To all this he added the following caution : "It has become appar- 
ent to all that the Soviet Union is capable, where it choses to con- 
centrate its efforts, of pioneering work in advanced and difficult 
fields of science and technology. It has been demonstrated that the 
Soviet Union is not limited to following and imitating the achieve- 
ments of Western science and technology." 44 

In January, 1960, Professor George B. Kistiakowsky, Special As- 
sistant to President Eisenhower for Science and Technology, in com- 
menting on the political impact of scientific leadership, referred to 
the intermingled problems of prestige and scientific capabilities. He 
accepted the fact of special Soviet capabilities in the field of large 
rockets. He pointed out that the United States, having first achieved 
nuclear weapons capabilities, had thereupon designed and perfected 
rocket -booster vehicles only large enough to launch the smaller and 
more sophisticated pay-loads. Thus, the United States elected to 
move ahead as rapidly as possible in ballistic missiles and made its 
"missiles as compact as possible to deliver warheads of adequate 
yield." 45 He also pointed out that "extra-large rockets are not 
required for our long-range missiles; hence our deficiency in outer- 
space payload capability does not indicate an inferior military 
capability." 46 

In making a general appraisal of U.S. and Soviet space technol- 
ogy, Professor Kistiakowsky observed "Our scientific studies of 
outer space, accomplished with smaller rocket boosters, have enjoyed 



4 2 Department of State Bulletin 214 (1960). 
"Ibid., at 217. 
"Ibid., at 213. 

45 George B. Kistiakowsky, "Science and Foreign Affairs," 42 Department of 
State Bulletin 277 (1960). 

46 Ibid. 



25 

unprecedented successes. Our scientific achievements in space have 
easily matched those of the Soviet Union, notwithstanding the 
greater publicity given to the Soviet technological spectaculars." 47 
He concluded with the important view that "The striving to emulate 
American scientific and technological progress has become an ambi- 
tious and urgent goal for countless millions of people, including, I 
might note, the Soviet Union." 48 

The close interrelationship between prestige and scientific capabili- 
ties was also reported by President Eisenhower's Committee on In- 
formation Activities Abroad. In 1961 Mr. Mansfield D. Sprague, 
Chairman of the Committee, stated "The United States has had, and 
continues to have, over-all superiority in science and technology. 
Nevertheless, since the launching of Sputnik I there has been consid- 
erable evidence of a widespread belief that Soviet capability contin- 
ues to grow relative to that of the United States and that the Soviet 
Union leads in certain important aspects of space technology." 49 The 
large-booster capabilities of the Soviets had provided so large a pres- 
tige lead for them that the committee thought that it would be 
hard for American prestige in the space area to be easily reestab- 
lished short of a revolutionary scientific breakthrough. It probably 
would be more factual to say that American prestige would be im- 
proved through successes as spectacular as those enjoyed by reason of 
the large-booster capabilities of the Soviets. It is the view of scien- 
tists and technologists that revolutionary scientific breakthroughs 
are very rare, and when they do occur they seem to spring up almost 
simultaneously in many parts of the world. 

More recent observers have also given the United States a position 
of leadership in science and technology. Our science has been de- 
scribed as being in a "flourishing state," as a "well-rounded establish- 
ment," and as of 1961 as "pre-eminent in every field." 50 As to Ameri- 

47 Ibid. 

48 Ibid. 

49 Sprague, "Extracts from the Conclusions and Recommendations of the Pres- 
ident's Committee on Information Activities Abroad," 44 Department of State 
Bulletin 191 (1961). See generally, "The Next Ten Years in Space, 1959-1969," 
House Select Committee on Astronautics and Space Exploration, 86th Cong., 1st 
Sess., Washington (1959). 

50 Piel, supra note 6, at 187-188. Early in 1963 Deputy Assistant Secretary of 
Defense Alain C. Enthoven pointed to the fact that "the gross national prod- 
ucts of the United States and our allies are more than twice the same total 
for the Soviet Union and its allies ; in terms of industrial production, the ratio 
is more than two and one half to one." He added "our wealth and technology 
confer on us some important advantages in non-nuclear combat." Suora note 21. 
at 11-12. 



26 

can technology, Piel also commented "Technology is what we are 
supposed to be good at. After all, our country is the most powerful 
industrial nation in the world." 51 

Much credit for continuing American leadership is given to efforts 
to cross-fertilize the different scientific disciplines. This has pro- 
duced a synthesis, and has thereby enriched the entire range of 
science and technology. However, where there has been a highly seg- 
mented approach weaknesses have been observed. There has not been, 
for example, a close relationship betwn biology and physics in the 
United States with the result that biophysics has not kept pace with 
other fields. 

Writing in the latter part of 1962, Kobert A. Kilmarx has endeav- 
ored to compare American and Soviet scientific and technological 
strengths and weaknesses. He has held that "At the present moment, 
the United States is still generally ahead of the Soviet Union in both 
science and technology, but not in a number of important areas. The 
realities of increasing Soviet scientific and technological strength can- 
not be gainsaid." 52 

There can, of course, be no absolute appraisal of ultimate strengths 
in an area as broad and dynamic as this. American sources generally 
assert that the United States is strong and preeminent in such basic 
sciences as agriculture, biology, chemistry, physics, and medicine. 
The situation for the United States is, perhaps, not so favorable in 
the derived or environmental sciences, including hydrology, meteorol- 
ogy, seismology, and water resources. But, neither are the Soviets 
particularly strong here, since excellence in these fields depends on 
special facilities resulting from the use of the entire world as a labo- 
ratory. 

Kilmarx reports that the Soviets are behind the United States in 
optics, photography, metallurgy, electronics, biological sciences, and 
probably other areas. 53 It is clear that the contest has been joined. In 
the words of Dr. Berkner "A race for intellectual preeminence is 
not in itself undesirable, for it is regenerative in character; like the 
intellectual challenges faced in the past it can, in the long pull, bring 
only benefit to man." 54 

It is clear that the Soviets, after a slow start in the fields of science 
and technology, have been coming along rapidly during the post- 



51 iMd., at 196. 

52 Robert A. Kilmarx, "Soviet Competition in Science and Technology," 43 
Current History 201, 205 (1962). 

53 ibid., at 203-204. 

54 Berkner, supra note 24, at 231. 



27 

World War II period. The large interest in these fields and the 
tempo of their progress has reached the point where in some areas 
they are competitive with the United States. 55 

A realistic appraisal of Soviet scientific and technological achieve- 
ments as related to the problems of outer space was made by Under 
Secretary of State Merchant in January of 1960, when he reported 
"By being first to achieve success in space flight, the Soviet Union 
has reaped great prestige. Continuing achievements have made this 
gain an enduring one. It has become apparent to all that the Soviet 
Union is capable, where it chooses to concentrate its efforts, of pio- 
neering work in advanced and difficult fields of science and technol- 
ogy. It has been demonstrated that the Soviet Union is not limited 
to following and imitating the achievements of Western science and 
technology. Although this new and justified view of Soviet capabili- 
ties is greatly to the credit of the Soviet Union, Soviet spokesmen 
would like the world to draw even more far-reaching conclusions. 
The Soviet Union would clearly like the world to conclude from its 
successful satellites and lunar probes that the Soviet Union has 
drawn abreast and even ahead of the United States in all of the 
broadly related fields which contribute to or derive advantage from 
such accomplishments. Further, the Soviet argument runs that these 
successes portray over-all capabilities, including military strength, 
and therefore that the Soviets ride the wave of the future. The spec- 
tacular character of Soviet achievements has undeniably overshad- 
owed the accomplishments of the United States, and it would be 
dangerous to regard as insignificant the effects of Soviet claims based 
on its achievements." 56 It was his conclusion that Soviet scientific 
and technological accomplishments pose a "threat" which "is neither 
purely political nor short-term." Their achievements were evidence 
of "strong scientific, technical, and industrial capabilities, organiza- 
tional effectiveness in concentrated effort, and they reflect growing 
military strength." 57 

The interrelatedness of science, technology, military capabilities, 
and outer space was acknowledged by Allen W. Dulles, as Director 
of Central Intelligence, in a 1960 speech. He pointed out that "There 
is no tendency in the intelligence community to underestimate Soviet 
sophistication in any phase of the missile field or the progress they 
have been making in developing their long-range missile system. I 
believe that the Soviets are trying to take advantage of the publicity 



55 Soviet Space Programs, supra note 10, at 3-34. 

56 Merchant, supra note 42, at 213-214. 

57 Hid., at 216. 



28 

they have achieved with respect to both missile and space programs 
in order to make the unsophisticated believe that these achievements 
mean overall superiority in the military field. Such superiority, in 
the opinion of more qualified experts than I, does not exist." 58 In 
view of the stern and relentless competition of the Soviets, he coun- 
seled against American complacency. 

The form of Soviet competition with American scientific and tech- 
nological methodology has been analyzed by Professor Kistiakowsky. 
He has contended that American strength lies in "excellence spread 
over a wide scientific and technological base. It is a feature of an 
authoritarian form of society that its government can concentrate 
efforts in narrow fields. If the total strength of such a society is 
substantial, as is that of the Soviet Union, then what one might term 
temporary technological superiority can be achieved by it in selected 
sections. So long as this superiority is temporary, so long as it does 
not permit a vital military advantage, and so long as it is not across 
a broad front, there is no need for alarm * * *. We must constantly 
bear in mind the sound military doctrine not to accept battle on the 
field of the enemy's choosing. Rather, we must continue to move 
across the entire broad front of scientific and technological advance. 
Thus, as a nation, we will remain a world leader." 59 

Thus, it will be seen that Soviet scientific and technological 
achievements are based essentially on three factors. There is the im- 
proved status of the Soviet intellectual community. There is close 
coordination between Soviet policy and scientific objectives. There is 
also good motivation and dedication on the part of the intellectual 
community to achieve excellence. It is interesting to note that the 
great value of scientific and technological product to the Communists 
has resulted in a high degree of independence on the part of the 
intellectual community from usual political controls. 60 

The close relationship between Soviet science and national policy 
was recounted in 1960 by the Science Adviser to the American 
Secretary of State. Dr. Wallace R. Brode pointed out that only such 
science programs as furthered the aim of the Communist Party were 
promoted in the Soviet Union. In support of his position he cited the 

58 "Intelligence Estimating and National Security," 42 Department of State 
Bulletin 415 (1960). 

59 Kistiakowsky, supra note 26, at 278. 

60 Berkner, supra note 24, at 227. He describes this as an "extraordinary 
spectacle in a totalitarian state." Equally impressive are Soviet statistics for 
1963 : "Fifteen academies of sciences, 4,172 Research Institutions and 524,000 
Scientists — this is the physical structure of Soviet science today." "Our 
Trends," 7 USSR, Illustrated Monthly 3 (July, 1963). 



29 

report of the Vice-President of the Soviet Academy of Science in 
1959, Dr. Aleksandr V. Topchiyev, as follows : 

The party teaches us that when tasks have been determined, it is 
necessary first of all to organize our forces in such a way as to 
solve the tasks placed before us with a minimum expenditure of 
resources and with maximum effectiveness. The new increase of 
research works in decisive sectors of science will require a fun- 
damental reorganization of the Academy of Sciences, U.S.S.R., 
and its institutions. The reorganization of the Academy must 
guarantee that scientific work is brought closer to the demands 
of life * * * 61 

In 1960 a survey was conducted by Professor Warren B. Walsh of 
Syracuse University in which he consulted more than fifty American 
scientists respecting the condition of Soviet science and technology. It 
was his conclusion, which conforms to the pattern already apparent, 
that the Soviets have the "ability and the capability to accomplish 
any humanly possible scientific mission to which the Soviet rulers 
assign high priority. 62 

Specific findings reported by Dr. Walsh include the fact that the 
Soviets have had a long interest in astronomical research and have a 
quantitative superiority in satellite orbit analysis, but that this com- 
mitment has not existed in cosmology and theoretical seismology. 
Lacking a large number of advanced computers the Soviets have not 
engaged in detailed research in general astronomy and in statistical 
physics. Although they are second in the field of mathematics, they 
were in 1960, "the world leaders in the mathematical subfields of anal- 
ysis, nonlinear differential equations ('the sub-field closest to appli- 
cations'), the theory of control circuits, that branch of geometry 
which deals with complex figures, and, perhaps also in topology." 63 

American leadership was observable in other fields. Thus, the So- 
viets "lag somewhat behind the United States in mathematical logic, 
modern algebra, algebraic geometry, and geometry as a whole. The 
Soviets excel in analytical number theory, but the United States 
leads in other aspects of number theory." 64 



61 Quoted by Wallace R. Brode, "National and International Science," 42 
Department of State Bulletin 738 (1960). 

62 Warren B. Walsh, "Some Judgments on Soviet Science," 19 The Russian 
Review 285 (1960). Compare, Marshak, "Reexamining the Soviet Scientific 
Challenge," 19 Bulletin of the Atomic Scientists 12-17 (April 1963) ; P.H.A. 
"International Competition in Science," 140 Science 773 (May 17, 1963). 

63 Walsh, ibid, at 281, 279-280. 

64 Ibid., at 281. 



30 

Acocrding to Walsh, the Soviets possess an excellent precision in- 
strument industry and are able to produce high quality chemical ap- 
paratus. They have been able to engage in quality research in the 
field of physical chemistry, and particularly polymerization, kinetics, 
combustion, and plastics. All have applications in the production of 
missiles and rockets. Other areas in which the Soviets rate well in- 
clude nuclear chemistry, including applications in the area of ultra- 
sensitive photographic emulsions; organic chemistry, including re- 
search on organo-metallic and organo-lithium compounds; physics, 
including the quantum field theory, quantum electrodynamics, and 
the theories of strange particles; solid-state physics, including appli- 
cations in microwave spectroscopy and other microwave techniques; 
and seismology, among others. 65 

In certain areas there seems to be an unevenness in quality. Thus, 
again, according to Walsh, in statistical physics only a limited 
amount of research is of a very high quality, as is substantially true 
in acoustics and plasma physics. In high energy nuclear physics the 
"range of results has run all the way from brilliant to poor * * *" 66 
and in low energy nuclear physics "there have been no significant So- 
viet contributions * * *" 67 The Soviet interest in satellites and other 
space vehicles has resulted in excellent work in hydrodynamics and 
astrophysics. Thus, while there has not been much interest in general 
astronomy, there has been excellent work done in those aspects of the 
subject which "are of great importance to the space age — radio- 
astronomy, astrononomical geodesy, and astrononomical theory." 68 
Medical science has not achieved the same standing as in the United 
States. 

The more recent analysis of Kilmarx bears out the same general 
conclusions. He has described Soviet physics and mathematics as be- 
ing "high level," and their theoretical physics, high energy nuclear 
physics, low temperature physics, and theoretical aspects of solid- 
state physics as demonstrating "particularly outstanding 
competence." 69 He has rated their astronomy and geophysics as 
having achieved remarkable successes during the past decade. Their 
geophysical sciences lead "the world in quantity of work done," and 
their physical chemistry is "outstanding" and comparable with that 
of the West." 70 As to their biological sciences, it is apparent that this 



cs IUd., at 282-283. 

66 IUd., at 283. 

67 Ibid., at 284. 

68 Ibid. 

09 Kilmarx, supra note 52, at 203. 
70 Ibid. 



31 

has been of inferior quality until recently, but that "real progress 
now is being made." 71 Their on-going research on life in a sustained 
space environment may have put them ahead of the United States in 
this field. This again demonstrates the uneven quality of Soviet re- 
search, since their prior record in medical and biological research has 
not been of the highest order. 

On the basis of facts of the kind just presented, it is clear that a 
sweeping judgment as to comparative excellence is not easy to make. 
There seems to be a consensus of opinion that Soviet science is very 
good in the higher energy realms. It is also clear that whenever con- 
centrated efforts have been made in particular areas the product has 
generally been of a very high order. It is also equally clear that both 
the United States and the Soviet Union, in contemplating the future, 
have endeavored to improve upon their scientific and technological 
potentials. Not the least of these efforts has been in the direction of 
educating more and more of the youth of the two countries to intel- 
lectual preeminence in these fields. 

In making a judgment on the matter, it is also necessary to take 
into account certain specializations built up in the Western World, 
but not necessarily situated in the United States. Thus 9 the United 
Kingdom is generally recognized as preeminent in the area of ra- 
dioastronomy, and this strength may readily be allocated to the 
West. 

Certain conclusions may be reached. Although Soviet and Western 
scientific and technological bases possess different historical antece- 
dents, at the present both bases are substantial. 72 In the future there 
will be many challenging and significant achievements flowing from 
each area. The West is aware of the nature of the challenge which 
has been offered, and since the challenge so vitally affects political 
and security considerations, it is clear that no stone will be left un- 
turned in an effort to advance more rapidly than the Soviets. 

Western planning is based on the assumption that its more even 
and broader base, coupled with its more mature technological expe- 
rience, will enable it to prevail. However, the appropriate manage- 
ment of the Western effort will itself be of primary significance, 
since the Soviets have demonstrated, at least on a short run basis, the 

71 ma., at 204. 

72 During the decade since Stalin the Soviets have advanced from a primitive 
to an advanced stage and "has emerged as a major scientific power." Ten years 
ago "few people outside the Soviet Union regarded that country as a serious 
contender in the field of scientific capabilities." Harry Schwartz, "Ten Years 
after Stalin," New York Times, Mar. 5, 1963, p. 6. 



32 

practicality of concentrating on specific scientific and technological 
parameters of the space race. As has been observed by one space 
strategist "It would be folly to deny * * * that the allies' estimates of 
the balance of power in the future are based in part upon the expec- 
tation that Western science and technology will obtain and maintain 
a decisive lead over the Soviet bloc." 73 

The reasons for expecting continued qualitative leadership by the 
West are diverse. The commitment to freedom is a more enduring 
base upon which to construct excellence than a commitment to abso- 
lutism. The economic resources of the West are more substantial than 
those of the Soviets, and tremendous amounts of money are being 
directed toward scientific and technological pursuits by government, 
private industry, research foundations, and universities. Broad pol- 
icy has been clarified, and this policy calls for victory in the space 
race. The significance of this race is well understood in the United 
States, and while taking into account occasional doubts respecting 
the substance of U.S. policy, there is general agreement that the 
American public supports the significance of being first in the space 
race. The economic implications of the space race are generally 
understood, and government spending in this area has contributed 
materially to the level of employment in the United States. In the 
United States, it has been proven possible to modify the direction of 
productive effort rapidly, as evidenced by the birth and rapid develop- 
ment of the electronic industry after 1930. This illustrates not only 
ingenuity in a creative sense, but it also demonstrates the ability of 
the United States to excel in any complex subject to which it devotes 
the requisite effort. In this connection the value of the free enterprise 
system is of central importance. 74 

Kilmarx suggests numerous reasons for Soviet advancement in 
scientific and technological capabilities. Not the least of the Soviet 
attributes is the factor of centralized control for planning, direction, 
operation, and management. He points out that the Soviets have 
given a "very high priority * * * [to a search] for scientific and tech- 
nological breakthrough with weapons applications * * * " 75 The 
Soviet effort is not unique. 

In conclusion it can be stated generally that the United States 
continues to have a reasonable qualitative leadership over the Soviets 



73 Goldsen, Outer Space and the International Scene 3 (1959). 

74 RADM J. P. Monroe, USN, "The Navy in Space," 5 Navy 9 (1962). He 
points out the close connection between freedom for science and freedom for 
enterprise generally. 

75 Kilmarx, supra note 52, at 203. 



33 

in the scientific and technological aspects of space. Certainly, it can- 
not be concluded that the Soviets, in any significant area of the space 
race, possess a military advantage, although their larger-booster ca- 
pability does constitute an exploitable prestige factor. 

If this be true, then the inaugural remarks of President Kennedy 
on January 6, 1961, are particularly pertinent. It will be recalled 
that he said : 
To those nations who would make themselves our adversary, we 
offer not a pledge but a request : that both sides begin anew the 
quest for peace, before the dark powers of destruction unleashed 
by science engulf all humanity in planned or accidental self- 
destruction. 

Let both sides seek to invoke the wonders of science instead of 
its terrors. Together let us explore the stars, conquer the deserts, 
eradicate disease, tap the ocean depths, and encourage the arts 
and commerce. 76 

Man's important activities must be subject to law and order. Man's 
use of space, either as presently understood or as his imaginative 
ingenuity will in the future direct him, is destined to be for impor- 
tant purposes. In view of the total capabilities of the United States 
and the Western World in space, and of principal importance its 
generally superior scientific and technological capabilities and poten- 
tial, it may be concluded that the United States would not be taking 
undue risks in maintaining a policy permitting the extension of law 
to space uses. 77 It must be conceded that national policies must be 
based upon a foundation of power which is adequate to the enforce- 
ment of such policies. There is no evidence which would support the 
view that the United States and the Western World would be unable 
to enforce a policy of requiring conformity to the rule of law in 
space. The rule of law has brought untold benefits to mankind. It 
would appear that the burden of proof is on those who would fore- 
stall or unduly restrict the extension of the rule of law to man's activ- 
ities in space. 

b. Political Approaches to the Law of Outer Space 
The emerging law of outer space reflects the multiple international 
and national forces of our times. It also reflects the search for a 



76 John F. Kennedy, "Inaugural Address," 44 Department of State Bulletin 
176 (1961). 

77 For an analysis of the impact of technology on the making of policy, see 
Mayo, "The New Technology and National Goals : Some Implications for Legal- 
Policy Decision Making," 37 Notre Dame Lawyer 33-69 (1961). 



34 

community of interests in the use of space, but at the same time there 
is clearly an admixture of motives and interests observable within 
the decisional forum. Inconsistencies within the political ranks of a 
given nation are observable, and patently obvious is the difference of 
attitude and approach on the part of scientists on the one hand and 
the typical political-legal leader on the other. One of the most no- 
table contrasts has been the splendid scientific cooperation in the 
peaceful uses of outer space and the relatively puny formal legal 
accomplishments realized at the international bargaining table. 

Formal public international efforts to develop a law of outer space 
have been located principally at the United Nations. Beginning in 
1958, the General Assembly adopted Resolution 1348 (XIII) on the 
Peaceful Uses of Outer Space, by a vote of 53 to 9, with 19 absten- 
tions. Subsequently the General Assembly unanimously agreed on 
four resolutions all entitled "International Co-operation in the 
Peaceful Uses of Outer Space :" on December 12, 1959 ; on December 
20, 1961; on December 19, 1962; and on December 24, 1963. 78 The 
United States, in the words of its Permanent Representative to the 
United Nations, Henry Cabot Lodge, Jr., from at least as early as 
January 12, 1957, has supported as an objective the use of outer space 
"exclusively * * * [for] peaceful and scientific purposes * * * " 79 
Additionally, the United States Memorandum submitted to the First 
Committee of the General Assembly on the above date, promulgated 
U.S. policy as one of cooperation through inspection, participation, 
and control. 

The 1958 United Nations Resolution 1348 (XIII) called for a 
report by an ad hoc committee as to the United Nations activities 
and resources relating to the peaceful uses of outer space, and on 
"the nature of legal problems which may arise in the carrying out of 
programs to explore outer space." 80 



78 The 1959 resolution was assigned number 1472 (XVI), the 1961 resolution 
was assigned number 1721 (XVI), the 1962 resolution was assigned number 
1802 (XVII), and the 1963 resolution was assigned number 1962 (XVIII), by 
the General Assembly. These resolutions are set out in the Appendix as Annex 
Nos. 1, 2, 3, and 4. The legal significance of United Nations action and of 
these resolutions is considered infra at pages 192-224. 

79 Legal Problems of Space Exploration, supra note 10, Chapter I, at 990. II 
Documents on Disarmament, 1945-1959, 733 (1960). See Annex 5, infra, at 
452. On November 14, 1957, the General Assembly adopted Resolution 1148 
(XII) which urged that States following a disarmament agreement would en- 
gage in a joint study of an "inspection system designed to ensure that the 
sending of objects through outer space shall be exclusively for peaceful and 
scientific purposes." See Annex 6, infra, at 455. 

80 Ibid., 1000. See Annex 7, infra, at 456. 



35 

The 1959 Resolution 1472 (XIV) established a Committee to re- 
view, study, and report on "practical and feasible means for giving 
effect to programmes in the peaceful uses of outer space which could 
appropriately be taken under United Nations auspices * * * " 81 
Further, it requested the Committee to "study the nature of legal 
problems which may arise from the exploration of outer space." 82 

The 1961 Resolution 1721 (XVI) commended to States "for their 
guidance in the exploration and use of outer space the following 
principles: (a) International law, including the Charter of the 
United Nations, applies to outer space and celestial bodies; (b) Outer 
space and celestial bodies are free for exploration and use by all 
States in conformity with international law and are not subject to 
national appropriation." 83 The Resolution also invited the Commit- 
tee to "study and report on the legal problems which may arise from 
the exploration and use of outer space." 84 

The 1962 Resolution 1802 (XVII) asserted the belief "that the ac- 
tivities of States in the exploration and use of outer space should be 
carried out in conformity with international law including the 
Charter of the United Nations, in the interest of friendly relations 
among nations." 85 It called for legal progress in a number of specific 
and important areas. 

The 1963 Resolution 1962 (XVIII) adopted the views contained in 
the foregoing resolutions. Its importance must be measured not only 
by its acceptance of general principles but also by significant provi- 
sions relating to the operational aspects of space vehicles. 86 

It is interesting to note that the theme of "peaceful uses" runs 
through all of the foregoing resolutions. Thus, the 1958 Resolution 
recognized "the common interest of mankind in outer space and that 
it is the common aim that it should be used for peaceful purposes 
only." The 1959 Resolution recognized "the common interest of man- 
kind as a whole in furthering the peaceful uses of outer space." The 
1961 Resolution extended "the common interest of mankind in fur- 
thering the peaceful uses of outer space," by recognizing the further 
"urgent need to strengthen international cooperation in this impor- 
tant field." The 1962 Resolution served the same purpose by recalling 
the 1961 position favoring "international co-operation in the peace- 



81 See Annex 1, at p. 441. 

82 IMd. 

83 See Annex 2, at p. 443. 
8 * IMd. 

85 See Annex 3, at p. 446. 

86 See Annex 4, at p. 450. 



36 

ful uses of outer space." The 1963 Resolution maintained continuity 
with the past by "recognizing the common interest of all mankind in 
the progress of the exploration and use of outer space for peaceful 
purposes." 

The position of the United States throughout this period has been 
one of active general support of the above resolutions. At the same 
time that the United States has sought clarification of general legal 
principles applicable to space, it has also advanced a draft proposal 
"On Assistance to and Return of Space Vehicles and Personnel," 87 a 
draft proposal "On Liability for Space Vehicle Accidents," 88 and a 
draft "Declaration of Principles Relating to the Exploration and 
Use of Outer Space." 89 

The top officers of the executive department of the Government 
have, during the administrations of President Eisenhower and Presi- 
dent Kennedy, given complete support to the propositions that law 
was applicable to space, that space should be used for peaceful pur- 
poses, and that there was a need to be selective in the application of 
legal principles and rules to outer space. The general resolutions sup- 
ported at the United Nations by the United States illustrate the 
broad and substantive approach to peaceful legal uses. The Declara- 
tion of Principles noted above, and put forward on December 8, 
1962, identifies broad principles having appeal to the United States. 
At the same time that the United States has advocated the selection 
of broad principles, it has also assigned high priorities to proposed 
specific rules, as reflected in its drafts for assistance and return, and 
on liability. 

The general approach of the United States may be illustrated by 
representative statements on the part of its President and persons 
holding the highest posts in the Departments of State and Defense. 
Thus, early in January of 1958, President Eisenhower wrote to Pre- 
mier Bulganin proposing that "we agree that outer space should be 
used only for peaceful purposes." 90 Later in 1958, the Legal Adviser 
to the Department of State pointed to the importance of insuring 
that outer space be used for peaceful purposes only, and indicated 
that this involved defense and foreign policy considerations of the 
utmost importance. 91 Then, in September, 1958, Ambassador Lodge, 

87 U.N. Doc. A/AC.105/L.4 ; U.N. Doc. A/5181 4-5 (1962). See Annex 8 at 
p. 458. 

86 U.N. Doc. A/AC.105/L.5 ; U.N. Doc. A/5181 5-6 (1962). See Annex 9 at p. 
458. 

89 U.N. Doc. A/C.l/881 ( 1962) . See Annex 10 at p. 459. 

90 38 Department of State Bulletin 122 (1958). 

91 Becker, "Major Aspects of the Problem of Outer Space," 38 Department of 
State Bulletin 962-963 (1958). See also 39 Ibid., 416-420 (1958). 






37 

in seeking the inclusion of international cooperation in the field of 
outer space in the agenda of the thirteenth General Assembly, filed a 
memorandum calling for support of "the principle of the peaceful 
utilization of outer space * * * " 92 This was followed by an address 
to the General Assembly by Secretary of State Dulles on September 
18, 1958, in which he proposed a draft resolution for Assembly ac- 
tion in which he indicated that the "United States believes that the 
United Nations should take immediate steps to prepare for a fruitful 
program on international cooperation in the peaceful uses of outer 
space." 93 Thus, during 1958, admitting that policy considerations 
were productive of problems respecting outer space, the United 
States official position supported peaceful uses, utilization for "con- 
structive pursuits," and an employment dedicated to the "maximum 
benefit to humanity." 94 The avenue whereby such goals were to be 
achieved was international cooperation. 95 

From 1958 on, with the growing appreciation of the substantial 
benefits to mankind which could be realized through the broadest 
possible uses of space, the official policy of the United States contin- 
ued to support the principle of peaceful uses. Thus, on May 6, 1959, 
Ambassador Lodge in appearing before the United Nations Ad Hoc 
Committee on the Peaceful Uses of Outer Space stated that it was 
his country's task "to help chart for the United Nations a course of 
cooperation among nations in the use of outer space for peace." 



96 



92 General Assembly Official Records : Thirteenth Session, Annexes, Agenda 
Item 60, 4 (1958). See Annex 11 at p. 460. This proposal was explained by 
Ambassador Lodge in a speech to the American Legion on September 2, 1958, 
where he stated : "Specifically, the United States will propose a program for 
international cooperation in the field of space. A practical program for interna- 
tional cooperation in the scientific and peaceful study and exploration of outer 
space must be set up." Through such an effort it was to be hoped that the 
United States would "increase the prospects that outer space will not be used 
for [aggressive] military purposes." 39 Department of State Bulletin 451 
(1958). 

93 Dulles, "Problems of Peace and Progress," 39 Department of State Bulletin 
529 (1958) . See Annex 12 at p. 462. 

94 Ibid. 

95 Hid. 

96 40 Department of State Bulletin 883 (1959). In the State of the Union Ad- 
dress of 1959 President Eisenhower said "We seek to prevent war at any place 
and in any dimension." Ibid, at 116. It was also during 1959 that Francis O. 
Wilcox, Assistant Secretary of State for International Organization Affairs in 
appearing before the House Committee on Science and Technology, said "It is 
my hope that the United Nations, by fostering cooperative efforts in the peace- 
ful uses of outer space, will avoid the projection into man's newest frontier of 
those harmful international rivalries which exist on this earth." Ibid, at 403 
(1959). 



38 

The situation during 1960 was well summarized by Under-Secre- 
tary of State Merchant in testimony before the House Committee on 
Science and Astronautics. He said: 

Even before the launching of the first earth satellite, the Pres- 
ident invited the Soviet Government to join in an effort to find 
ways to assure that outer space be used for peaceful purposes 
only. Ambassador Lodge has reiterated this proposal on appro- 
priate occasions in the United Nations. The United States has 
thus made clear its desire, either as a part of or separately from 
the more inclusive efforts to establish control of armaments, to 
study and explore together with the Soviet Union and other na- 
tions what might be done to accomplish this objective. 

Meanwhile we have sought to proceed with more immediately 
attainable consultative and cooperative activities related to the 
peaceful uses themselves. In doing so, we have recognized that 
outer space, by its very nature, is not the concern of one nation 
or of only a few. It is of interest to all. 97 

The continuing policy of the United States was described by Pres- 
ident Kennedy in his address to the United Nations on September 
25, 1961. In recognizing the need for the application of law to man's 
activities in outer space, he called for the implementation through the 
United Nations of a four-point program. American policy, to be car- 
ried out through the United Nations, was to consist of "extending 
the United Nations Charter to the limits of man's exploration in the 
Universe, reserving outer space for peaceful use, prohibiting weap- 
ons of mass destruction in space or on celestial bodies, and opening 
the mysteries and benefits of space to every nation." 98 In addition to 
these four basic principles the President also acknowledged the need 
for international cooperation in certain specific areas, e.g., weather 
prediction and control, and a global communications system. 

During 1961 and 1962, practical efforts were made by the United 
States to implement the four major proposals of President Kennedy, 
as well as the two supplementary ones. Thus, in addressing Commit- 
tee I at the United Nations on December 4, 1961, Ambassador Adlai 
E. Stevenson urged international space cooperation for the benefit of 
mankind. His four-point program closely paralleled that put for- 
ward by the President. He advocated a "regime of law and order in 
outer space," "the open and orderly conduct of outer space activi- 
ties," "a worldwide effort under the auspices of the United Nations 



97 Merchant, op. cit., supra note 42, at 214. 

98 44 Department of State Bulletin 622 (1961) 



39 

in weather research and weather prediction," and "the establishment 
of a global system of communication satellites." " Although no direct 
reference was made to the President's policy of "reserving outer 
space for peaceful use," yet all of the points put forward may be 
subsumed under this general heading. 

A somewhat different restatement of the President's four-point 
program was suggested by Richard N. Gardner, Deputy Assistant 
Secretary of State for International Organization Affairs, on March 
10, 1962. According to him, the program "called for a regime of law 
and order in outer space, the registration of satellites and space 
probes [which had been considered by Ambassador Stevenson as a 
subsidiary point to his 'open and orderly conduct of outer space 
activities'] 10 ° with the United Nations, a worldwide program 
of weather research and weather forecasting, and international coop- 
eration in the establishment of a global system of communications 
satellites." 101 

The fact that American policy toward outer space was undergoing 
a modest reappraisal was illustrated by Secretary of State Rusk's 
emphasis in a speech entitled "New Frontiers of Science, Space, and 
Foreign Policy," delivered on May 25, 1962. He advanced six goals, 
as follows: 

"First. We think that outer space should be free for use by all 
nations as long as the use is consistent with the principles of the 
United Nations Charter. 

Second. We think that the regime of law obtaining among the 
nations on earth must be extended and improved as it pertains 
to outer space. 

Third. We think that there must be devised a clear and recog- 
nized means for the identification of rights and the adjudication 
of disputes as between nations conducting activities in outer 
space. We require, for example, mechanisms to assist in the res- 
cue of astronauts who land unexpectedly in foreign territory 
and for the determination of liability for injuries or damage 
caused by objects returning from outer space. 

Fourth. We think that useful applications of space technol- 
ogy, such as communication and meteorological satellites, 
should be available to all nations, particularly the less developed 

99 "International Cooperation in the Peaceful Uses of Outer Space," 46 
Department of State Bulletin 181-183 (1962). 

100 Hid., at 182. 

101 "Extending Law into Outer Space," Ibid., at 587. 

791-405 — 66 4 



40 

nations, commensurate with a realistic assessment of their needs 
and their ability to commit resources to the use of these applica- 
tions. 

Fifth. We stand for the proposition that opportunities to par- 
ticipate in outer space activities should be open to all nations 
commensurate with their ability and willingness to cooperate 
constructively. 

Sixth. We have proposed, as part of our disarmament propos- 
als now being discussed at Geneva, that, under adequate inspec- 
tion and control, the placing in orbit of weapons of mass de- 
struction be prohibited." 102 

Testimony before subcommittees of the House Committee on 
Science and Astronautics in 1962, illustrated specific areas in which 
cooperation for peaceful purposes might be implemented. On Sep- 
tember 11, 1962, Mr. Gardner emphasized the use of meteorological 
satellites for cooperative programs in the peaceful use of outer space. 
He said "Here is a program in the peaceful uses of outer space which 
is not only important to us nationally, for economic and social rea- 
sons, but in addition is recognized as vitally important to the daily 
needs of people in all countries." 103 

Mr. G. Griffith Johnson, Assistant Secretary of State for Eco- 
nomic Affairs, foresaw similar national and international gains 
through the development of communications satellites. It was his 
view that the exploitation of outer space for peaceful purposes in the 
field of communications would be furthered by a truly global system 
based on international cooperative programs. 104 

The position of the United States at the close of 1962 was clearly 
stated before the First Committee of the United Nations by Senator 
Albert Gore on December 3. After noting that the United States 
through the United Nations had cooperated in the goal "that man's 
conduct in outer space will be reasonably orderly, certainly peaceful, 
and in the best interests of all nations and all peoples * * * ", 105 he 
asserted that there was an ongoing requirement for the "constructing 
of adequate assurances that the exploration and use of outer space 
will be for peaceful purposes. My government wishes its views on the 

io2 46 Department of State Bulletin 933 (1962). 
108 47 1 oid., 500 (1962). 

104 Ibid., at 570. 

105 U.N. Doc. A/C.l/PV. 1289 8-10 (1962). A similar viewpoint was expressed 
by the American Representative at the March 19, 1962 meeting of the Commit- 
tee on the Peaceful Uses of Outer Space. Mr. Plimpton called for "international 
cooperation in the peaceful use of outer space in the fateful years that are 
ahead of us." V.N. Doc. A/AC.105/PV.2 26 (1962). 



41 

most pressing aspects of this problem explicitly stated and under- 
stood. It is the view of the United States that outer space should be 
used only for peaceful — that is, non-aggressive and beneficial — pur- 
poses. The question of military activities in space cannot be divorced 
from the question of military activities on earth." 106 Throughout the 
space age, then, it will be seen that the United States has asserted 
policies built on peaceful uses and international cooperation. Un- 
derlying these considerations have been the expectation that wide 
and mutual benefits would result. 

The views put forward by or on behalf of the executive depart- 
ment of the government have also been proclaimed in the Congress. 
Thus, in June, 1958, Congressman John W. McCormack of Massa- 
chusetts introduced House Concurrent Resolution 332, which ex- 
pressed "the devout wish of all peoples everywhere, in every nation, 
in every environment that the exploration of outer space shall be by 
peaceful means and shall be dedicated to peaceful purposes." 107 The 
National Aeronautics and Space Act of 1958, adopted on July 29, 
1958, took this viewpoint into account in detailing the following ob- 
jective as being one of those pertinent to the Act : 

(4) The establishment of long-range studies of the potential 
benefits to be gained from, the opportunities for, and the prob- 
lems involved in the utilization of aeronautical and space activi- 
ties for peaceful and scientific purposes * * * 108 

The Act made it clear that there was no inconsistency between the 
goal of peaceful and scientific uses of outer space and the national 
requirement for national security. Thus, the Act made reference to 
the role of the Department of Defense in dealing with activities "pe- 
culiar to or primarily associated with the development of weapons 
systems, military operations, or the defense of the United States (in- 
cluding the research and development necessary to make effective 
provision for the defense of the United States) * * *" 109 It was under 
these circumstances that the Act announced the policy of the United 
States to be in support of devoting outer space activities to peaceful 
purposes beneficial to all mankind. 

106 Ibid., at 13. Compare, Gardner, "Cooperation in Outer Space," 41 Foreign 
Affairs 359 (1963), "The test of the legitimacy of a particular use of outer 
space is not whether it is military or non-military, but whether it is peaceful or 
aggressive. There is, in any event, no workable dividing line between military 
and non-military uses of space." He asserted that peaceful uses must be defen- 
sive and beneficial. 

107 72 Stat. H13 (1958). 

108 72 Stat. 426 (1958). 

109 Ibid. 



42 

One of the legal draftsmen of the statute has stated that the word 
"peaceful" in the Act, "means nonaggressive rather than 
'nonmilitary.' " 110 He added that this interpretation of the language 
expressed the intent of the Congress, and stated "The same meaning 
of the term may be found in international law. It also appears to be 
the most reasonable interpretation. If 'peaceful' is understood to 
mean 'nonaggressive,' * * * the legal control of outer space will be 
greatly facilitated." 1X1 

It is worth noting that the American Bar Association's Committee 
on the Law of Outer Space, 1959, accepted the same viewpoint. The 
report provided: 

In the sense of the [United Nations] Charter, and in interna- 
tional law generally, [the term 'peaceful'] * * * is employed in 
contradistinction to 'aggressive.' * * * Thus any use of space 
which did not itself constitute an attack upon, or threat against, 
the territorial integrity and independence of another State 
would be permissible * * * 112 

Both of these points have been noted by Spencer M. Beresford, Spe- 
cial Counsel, House Committee on Science and Astronautics, from 
1958 through 1960. In acknowledging the hybrid military-peaceful 
potentialities of almost all spacecraft, he stated that "As a practical 
matter, the range of activities in outer space will be narrow indeed if 
all that lend themselves to military purposes are prohibited." 113 To 
require the concept of peaceful uses to include only those uses exclu- 
sively dedicated or potentially so dedicated to nonmilitary purposes 
would so gravely restrict the practical uses of outer space as to deny 
mankind the many benefits now open to him. 

The same conclusion has been reached by a commentator having an 
official connection with the National Aeronautics and Space Council. 

110 Feldman, "The Report of the United Nations Legal Committee on the 
Peaceful Uses of Outer Space : A Provisional Appraisal," Second Colloquium, 
supra note 10, at 23. 

111 Ibid. He offered as a tentative definition of aggressive space vehicles and 
activities "those that can cause direct harm to objects on the earth's surface," 
As previously indicated, aggression is characterized by intent and conduct 
reflecting such intent. 

112 Report of the Committee on the Law of Outer Space, American Bar Asso- 
ciation 11 (1959). For the ABA's view that aggressive conduct must be dis- 
tinguished from self-defense and security rights, see the 1959 resolutions adopt- 
ed by the House of Delegates. 84 Annual Report of the American Bar Associa- 
tion 175-176 (1959) ; Legal Problems of Space Exploration, supra note 10, at 
595-596. 

113 "Surveillance Aircraft and Satellites: A Problem of International Law," 27 
The Journal of Air Law and Commerce 109 (1960). 



43 

In pointing to the duality of purpose served by the 1958 statute, Dr. 
Edward C. Welsh has emphasized the fact that the policy language 
of the Act ("activities in space should be devoted to peaceful pur- 
poses for the benefit of all mankind") "does not mean that space has 
no military or defense uses." 114 Thus, he made the point that "Noth- 
ing is more essential for peace than the capability to discourage or 
deter attack. In my view, we do not have a division between peaceful 
and nonpeaceful objectives for space. Rather, we have space missions 
to help keep the peace, and space missions to help increase our ability 
to live well in peace." 115 

Nevertheless, there are strong pressures against the sending into 
outer space of the mass destruction type weapon. Reference has been 
made above to President Kennedy's 1961 address to the United Na- 
tions in which he asserted, as one of America's major policies for 
space, that weapons of mass destruction be prohibited in space or on 
celestial bodies. Other U.S. officials have enunciated this view on sev- 
eral occasions. The substantial efforts made by the United States to 
prevent the placing of weapons of mass destruction into orbit during 
the first stage of the disarmament process are well known. The policy 
of the United States was restated by Senator Gore at the United 
Nations in December of 1962: "Even though it is now feasible, the 
United States has no intention of placing weapons of mass destruc- 
tion in orbit unless compelled to do so by actions of the Soviet 
Union." 116 Thus, it is clear that whether or not outer space will be 

114 "Peaceful Purposes : Some Realistic Definitions," 44 Air Force & Space 
Digest 73 (1961). The Secretary of Defense in reporting on U.S. military space 
programs has indicated that "The exploitation of outer space as a possible 
environment for basic defense missions is receiving increased attention and 
activities in this field are steadily expanding." Annual Report for Fiscal Year, 
1961,20 (1962). 

115 ma. 

116 U.N. Doc. A/C/l/PV. 1289, 16. This viewpoint was carried even further by 
a group of British international lawyers in 1962, when, in putting forward a 
"Draft Code of Rules on the Exploration and Uses of Outer Space," they 
provided "No spacecraft carrying any type of warhead or otherwise designed as 
a weapon for use against targets on the earth or in the airspace, shall be 
placed in orbit around the earth, or celestial body, or be carried in or launched 
from any space station or celestial body." In commenting on this rule, the 
group added "The prohibition is limited to spacecraft designed as weapons 
whether of conventional, nuclear, chemical or bacteriological warfare. It does 
not extend to surveillance or reconnaissance satellites, which may primarily 
serve military purposes, yet have the advantage that they contribute to an 
'open world' and so increase rather than diminish security." The David Davies 
Memorial Institute of International Studies, 12 (n.d.). The proposal submitted 
by the United States to the United Nations on Sept. 25, 1961 favoring general 



44 

reserved exclusively for peaceful and scientific uses has not been ulti- 
mately resolved. While it is generally recognized that space vehicles 
do possess hybrid characteristics, that is, they may be used either for 
peaceful and scientific purposes or they may be used for aggressive 
military purposes, this fact alone does not prevent the use of such 
devices. Further, the military use of such vehicles, when reasonably 
used for good or proper purposes, e.g., self-defense or security, is not 
inhibited. It is only when such devices are employed for aggressive 
purposes, including as weapons of mass destruction, that United 
States policy and much of mankind has come to regard them as ob- 
jectionable. It is now coming to be understood that space vehicles are 
subject to international law and to the terms of the United Nations 
Charter. 

c. Policy Approaclies in the United States to a Law of Outer 
Space 

American policy respecting outer space, despite the general aware- 
ness of the facts sets forth above, has been divided between two 
opposing schools of thought. The disagreement is not as to goals so 
much as it is a question of how American interests might be best 
advanced and protected. 

When a subject is regarded as novel there is an almost relentless 
tendency to advocate caution in treating it. When the subject is 
better understood there is a noticeable tendency to move more rap- 
idly to resolve remaining uncertainties. Several years ago the coun- 
sels of caution were preponderate, and the "wait and see" point of 
view seemed to prevail. However, with greater experience a new 



and complete disarmament, seeking to promote the peaceful use of outer space 
during stage I, provided "The placing into orbit or stationing in outer space of 
weapons capable of producing mass destruction shall be prohibited." U.N. Doc. 
A/4891, 45 Department of State Bulletin 652 (1961). It is also noteworthy that 
during the height of the Cuban crisis in 1962, President Kennedy wrote to 
Premier Khrushchev, "I think we should give priority to questions relating to 
the proliferation of nuclear weapons, on earth and in outer space, and to the 
great effort for a nuclear test ban." New York Times, October 29, 1962. See also 
Kennedy, "The Nuclear Test Ban Treaty : A Step Toward Peace," 49 Depart- 
ment of State Bulletin 234 (1963). The treaty text is set forth at pp. 239-240. 

The foregoing attitudes culminated on October 17, 1963, in General Assembly 
Resolution 1884 (XVIII). This Resolution entitled "Question of general and 
complete disarmament," after calling attention to the previously asserted belief 
that "the exploration and use of outer space should be only for the betterment 
of mankind" solemnly called upon all states to refrain from placing weapons of 
mass destruction in outer space or on celestial bodies. U.N. Doc. A/RE S/l 884 
( XVIII ) . See Annex 13 at p. 462. 



45 

approach is gaining acceptance. This view was portrayed by Senator 

Gore at the United Nations in 1962. He said: 

Outer space is not a new subject; it is just a new place in 
which all the old subjects come up. The things that go on in 
space are intimately related to the things that go on here on 
earth. It would be naive to suppose that we can insulate outer 
space from other aspects of human existence. 117 

One commentator observed in 1960, that perhaps the State Depart- 
ment's position of "wait and see" may have "already served its full 
useful period." 118 Recently a high Department of State official has 
called for international "cooperative arrangements on specific func- 
tional problems," but not for an outer space "Congress of Vienna." 119 
It is noteworthy that the debates at the United Nations have dis- 
closed several opposing points of view as to the means whereby the 
law of outer space might best develop. Thus, there are numerous 
proponents of the view that the United Nations should prepare, in 
addition to those already agreed to, a rather extensive statement of 
legal principles for outer space. Some nations have advocated the 
preparation of a detailed draft convention, which would contain all 
the specific rules characteristic of a prolix code. Other points of 
view, including that of the United States, call for agreement on an 
effective number of basic principles, subject to additional agreement 
on a restricted number of detailed rules which reflect the practical 
needs of the current space age. This would leave to the future addi- 
tional detailed rules and would make them depend on a realistic de- 
mand for their existence. 120 

The supreme danger confronting legal policy-makers is that an 
effort dedicated to providing answers may sometimes result in overly 
simple answers to complex and difficult problems. A further danger, 
in the eyes of some, is the effort to provide answers at all, on the 
score that there are not ultimate solutions and that the attempt to 
provide answers which are not real is both retrogressive and mislead- 
ing to the naive and unsuspecting. 



U7 U.N. Doc. A/C/l/PV. 1289, 16. Compare Galloway, "The United Nations Ad 
Hoc Committee on the Peaceful Uses of Outer Space," Second Colloquium, 
supra note 10, at 34: "Outer space has simply been added as a new environ- 
ment into which existing and projected human activities are being extended." 

118 Roberts, "Outer Space and National Sovereignty," 12 Air University Quar- 
terly Review 62 (1960). 

119 Gardner, supra note 106, at 360 

120 See pp. 158-174, 432-433 infra in which the debates and points of view put 
forward at the United Nations are discussed in detail. 



46 

The reluctance of policy-makers to provide real answers to serious 
legal questions is, in part, understandable. Such makers of policy are 
managers of policy, and if their answers are too sharp and precise, 
they of course may, in an operational situation and in a logical sense, 
be impaled upon their prior rationale. It is always more difficult to 
explain away a previously given answer than to be able to manage 
affairs absent such self-imposed limitations. Admittedly, the exist- 
ence of present answers restricts the freedom of action of the policy- 
manager, if it could be assumed that constant improvisation is a sat- 
isfactory alternative means of proceeding. 

With the emergence of an international law of outer space, the 
American — as well as his foreign counterpart — is confronted by just 
these problems. There is, in this connection, an additional point to be 
noted. No answer — whether improvised or based on the most careful 
study and analysis — can hope to be ultimate. In particular, answers 
to social and hence political and legal matters must take into account 
the actual conditions of life in which they must be used. Hence, an 
unwillingness to provide answers on the score that they will not be 
definitive would hardly seem to be a reason for not seeking answers 
appropriate to a given time and place. 

Such an approach need not suggest that the time has arrived for 
the preparation of a comprehensive code on the law of outer space. 
But, on the other hand, it does not suggest that the correct approach 
is to await the existence of hard, practical problems before attention 
is given to resolving them. In short, the case by case method — com- 
mon law approach — has no greater intrinsic claim to being the sole 
or best approach than the serious and practical preparation of a 
comprehensive code. Experience has demonstrated that the creation 
of law in the civil law countries is accomplished as effectively as in 
those countries following the common law tradition. 

The principal reason for a "wait and see" approach put forward 
by commentators, who have interested themselves in the emerging 
law of outer space, has been that all of the essential facts — particu- 
larly scientific facts — have not been made available. It should be 
noted, however, that during the past ten years a more complete un- 
derstanding of space capabilities has been achieved. 

Other more activistically inclined commentators have argued that 
outer space law is more a political than a scientific problem, and that 
its principles and rules "like much else in an indeterminate universe, 
depend on the order of experience in space as well as on the chang- 
ing political context." 121 Many commentators have remarked about 

121 McDougal and Lipson, "Perspectives for a Law of Outer Space," 52 A.J.I.L. 
430 (1958). 



47 

the extensive gap between scientific and technological achievement 
and the condition of the law. 122 They favor closing the gap through 
the promulgation of what they regard as present, practical, common 
sense rules. Further, they admit the existence of binding principles 
and rules. Rather than accepting the policy of deferring to science 
and technology, and since the day-to-day operation of public affairs 
under given rules and principles is infrequently their concern, the 
proponents of this point of view favor a present affirmative role on 
the part of lawyers and political leaders in the formulation of the 
law. 

Arguments for present action take several forms and have been 
voiced by theoreticians and practitioners alike. The principal reason 
advanced is that the creation of an adequate law for outer space is 
no longer in the area of theory "but a practical necessity." 123 The 
Secretary of State has seen in an emerging law of outer space a new 
challenge to "man's ability to organize his affairs with at least a 
modicum of good sense." 124 Some have noted that law does not ap- 
pear to be keeping pace with scientific advances, and that there is a 
need for law to provide a peaceful setting for science, both at home 
and in the world at large. 

Those who support the need for a present law of outer space fear 
the consequences of uncontrolled and haphazard expedients. This po- 
sition was best put by Senator Kenneth B. Keating, who, in 1958, 
after expressing disapproval of the "wait and see" approach, urged : 
World civilization has passed the point — again due to a rising 
Tempo in human affairs — where it can afford to sashay into 
Space without some anticipation of the consequences or permit 
the concept of Space regulation to 'just grow.' 125 
Others deplore the social waste and resultant friction involved in 
taking corrective action after having harvested the fruitless results 
produced by earlier unconcern. This role of decision making in re- 
verse has been described as involving five phases. At first, there is an 
effort to avoid giving any thought to the future, particularly if in- 
ternationally difficult problems seem to be involved. Then, other na- 
tions with other interests move into the political vacuum and posit 

122 See the articles in the various Colloquia on the Law of Outer Space, and 
the debates at the United Nations during 1961-1963. 

123 Robert D. Crane, "Law and Strategy in Space," 6 Orois 281 (1962). 

124 Rusk, supra note 102, at 932-933. He added: "The right time to subject 
activities in space to international law and supervision is now, before possibly 
untoward developments occur." 

125 "Space Law and the Fourth Dimension of our Age," Legal Problems of 
Space Exploration, supra note 10, at 435. 



48 

affirmative policy attitudes, which may be, and often are, opposed to 
the interests of the slothful state. Then, there is sharp awakening on 
the part of the dormant, would-be, policy-maker. This is followed by 
substantial efforts to overcome past inactivity and to modify or set 
aside the results of earlier procrastination. Finally, this is followed 
by even larger efforts, with incumbent international friction, and 
with no positive assurance that more might be gained than would 
have been with an earlier mature and alert attitude. On the basis of 
this kind of analysis, the proponents of an adequate present law for 
outer space point out that goals cannot be "pondered or debated or 
deliberated endlessly * * * We can spend a lifetime pointing out the 
administrative complexities and problems involved. But while the 
problems are being debated, the opportunities may well be lost." 126 

A long time member of the House Committee on Science and As- 
tronautics, Congressman Overton Brooks, has summarized the pres- 
ent need for the establishment of general space law. He stated in 
1961 "I believe we must proceed at once to develop the principles of 
space law and try to reach an early agreement on the scientific and 
commercial uses of space." 127 Subjects requiring immediate legal at- 
tention, according to Mr. Brooks, included traffic control, liability 
for damage, allocation of radio frequencies, and the prevention of 
interplanetary contamination, among others. Many of the same 
problems were noted by the American Bar Association in 1959, when 
it was calling for action in this field. 128 

The present writer is of the view that the cautious counsels of 
"wait and see" served a constructive purpose for their time. 129 How- 
ever, in view of the present tempo of demands for a clarification 
of the law of outer space, it now is clear that affirmative steps will 
have to be taken to formalize the law of outer space. 

It should be emphasized that lawyers should not be unduly im- 
pressed with the physical novelty of outer space. While it is a new 
dimension for man's activities, there seems to be little doubt that man 
will conduct himself in space very much as he has on earth. The 
same values and the same problems will confront him. The law will 
be man-oriented. Any proper understanding of the law of outer space 

126 Watson, supra note 33, at 204. 

127 Brooks in Ramo, ed., Peacetime Uses of Outer Space 208 (1961). 

128 "Report of the Committee on Law of Outer Space — Recommendations : 
1959," 1959 Proceedings on the Section of International and Comparative Law 
215-233. This has been reproduced in Legal Proolems of Space Exploration, 
supra note 10, at 571-594. Compare, Bloomfield, ed., Outer Space 150 (1962). 

129 These have been collected by Simeone, "Space — a Legal Vacuum," Military 
Law Review, April 1962, note 5, at p. 44. 



49 

must take into account man's needs and his prospective uses of outer 
space. He will continue to demand that space be available to him for 
all reasonable uses. 

Thus, this book will have served one purpose if it helps move for- 
ward man's thinking on the law of outer space. The demand for 
something better than presently exists is a central fact. Just as the 
first book on the law of contracts has little semblance to today's pub- 
lications on that subject, and just as today's interpretations of the 
law of contract may prove less than adequate for generations several 
times removed, so presumably it will be with this space law treatise. 
In fact, there is a good probability that there will be major differ- 
ences between this analysis and other studies currently being under- 
taken. 

That those of us who have been concerned with the emerging law 
of outer space should view its processes and substance somewhat dif- 
ferently is to be expected. For, as has been suggested, the policy 
considerations of this law are of more than usual importance. 
Through the ongoing competition in the market place of ideas, the 
views put forward here will confront other and differing views. The 
ultimate synthesis — dynamic though it will be — will be instructive to 
those who understand the processes and purposes of the law and to 
those, in particular, who will be called upon to apply and enlarge it. 

The future space lawyer will be involved in a fascinating process. 
He will move as rapidly as he can — although more slowly than many 
will wish — and will give due attention to the following resources. He 
will examine custom and its influences. He will endeavor to select 
legal principles which affect his problem. He will seek meaningful 
international recommendations and declarations which promulgate 
such principles. He will be delighted with limited international 
agreements, and even more pleased with more general agreements. 
He will pursue the final objective of universal international agree- 
ments. During all of this time, he will seek to bring principles down 
to rules, and rules down to enforceable rules. In brief, he will seek 
the development of enough legal order in outer space to allow for the 
realization of his ongoing needs. 

B. THE ESSENTIALS OF A MINIMUM PUBLIC ORDER 

H. G. Wells wrote, somewhat prophetically, in 1895, "we have 
learned now that we cannot regard this planet as being fenced in and 
a secure abiding-place for man; we can never anticipate the unseen 
good or evil that may come upon us suddenly out of space." 

130 Wells, The War of the Worlds (Epilogue) (1895). 



130 



50 

A minimum public order in world affairs requires an awareness of 
the existence of man's wide-ranging common interests. It demands 
the presence of political institutions equipped to provide a forum for 
discussions. This must necessarily be supplemented by forms of law 
and traditions of order. Forms of coercion must be available, and 
they must be not excessive to the needs of the society. A predictive 
tendency to rationality on the part of participants is highly desir- 
able. All of these factors are bound together with the conviction 
that man does have a purpose in his being, and that this can be 
established by the universality of his needs. 131 

The public order takes appreciable form with the evolution of 
permitted and prohibited forms of conduct. It takes into account the 
importance of the Hohfeldian arrangement of correlatives and oppo- 
sites. It thus seeks to contribute to the amelioration of friction and to 
the harmonization — or at least neutralization — of competing inter- 
ests. 

The world public order, in comparison with national public orders, 
is decentralized, relatively primitive, and much in need of develop- 
ment. Because of the relative ineffectiveness in some circumstances of 
the world public order, legitimate self-help and wrongful resort to 
unpermitted forms of coercion are more typical than within a na- 
tional public order. But, by reason of the destructive capabilities of 
today's coercive forms, and the possibility of over-all loss rather 
than net gain as a result of their successful employment, the impor- 
tance of the international legal-political forum now attracts greater 
significance. 

Justice William O. Douglas of the United States Supreme Court 
has urged the development of a minimum of world order. He has 
written : 

Mr. Justice Holmes said in 1895, 'Now, at least, and perhaps 
as long as man dwells upon the globe, his destiny is battle, and 
he has to take his chances with war.' This viewpoint has domi- 
nated men's thinking for centuries. Yet it deserves no enduring 
place in any decalogue. For man is capable of great cooperative 
efforts in peace as well as war. Love and the instinct for preser- 
vation of life — these are even deeper in man's character than 
violence. 132 
This was made explicit by two authors who recently have pointed up 
the fact of common individual and national interests, both long and 
short term, in the establishment and continuation of a minimum 

131 Jessup, Transnational Law 1-34 (1956). 

132 Douglas, The Rule of Law in World Affairs 5 (1961). 



51 

world public order. After pointing out that "prohibition is the first 
indispensable law of any public order," they state that this requires 
that internationally "no change shall be effected through intense co- 
ercion and violence." 133 

Several factors have contributed to a greater awareness of the need 
for practical processes and adequate rules of substantive behavior to 
avoid the alternative of violence. Within the social complex, as is 
equally true in nature, there are two basic forces — one positive and 
one negative. It is the function of the international lawyer to harness 
these two forces in such a fashion that men everywhere will come to 
recognize a mutuality of interests in deriving the maximum benefit 
from these forces. Corbett has stated the problem in these words: 
"The recognition and implementation of common values are the 
foundation and the business of society." 134 

The negative force contributing to the mutuality of interests which 
demands a world public order is that of fear. The positive force is 
the product of many confidences stemming from a growing realization 
of mutual advantages which have derived from ever greater inter- 
dependency. 

Julius Stone has called attention to the constructive force of fear 
by referring to man's modern quest for survival. Personal insecuri- 
ties and anxieties may be attenuated through the establishment of a 
regime of law and order between peoples. 135 There can be no doubt 
that common fears of mass extermination lend much support to de- 
mands for a minimum world public order. 

One can also build constructively upon an understanding of the 
kind of world in which we actually live. The scientific and technolog- 
ical revolution, as has been suggested, has triggered another revolu- 
tion — the revolution of rising human expectations. The "have nots" 
have been made aware of human capabilities and of their prospects 
— often quite remote — of living like others live. The "haves" are in 
search of consumers to buy their products. The demands of trade and 
commerce have heightened contacts all around the globe. There have 
been demands for interchanges of goods, services, concepts, know- 
how, and — above all — ideas. With this there has been a demand for 
law and order so that the benefits of this decade's great material 

133 McDougal and Feliciano, supra note 8, at 170, 128-131 ; compare, Deutsch 
in Goldsen, ed., International Political Implications of Activities in Outer 
Space 181-182 (1960), and Dickinson, Law and Peace 1-31 (1951). 

134 Corbett, Law and Society in the Relations of States 300 (1951). 

135 Stone, Quest for Survival 1 (1961). He also warns that there is a danger of 
misleading people through the "rule of law" concept, for they may wrongfully 
assume that law will prevail in the absence of institutions suited to support it. 



52 

progress might be widely shared. Concurrently, there has been an 
expansion of a humanistically oriented philosophy, which urges that 
the "good life" is within the range of all. 

In addition to material considerations are the moral ones, which are 
generally regarded as "essential to the vitality of all legal 
obligations." 13tJ Stone also emphasizes the view that "the es- 
sence of the rule of law ideal lies, therefore, not in technical law as 
such, but rather in the supremacy of certain ethical convictions, cer- 
tain rules of decency prevalent in the community, and in the psycho- 
logical fact that those who are at the apex of power share those 
convictions and feel bound to conform to them." 137 These, and other 
elements of the social complex, have an indelible effect on the law of 
outer space. 

In summary, then, a worth-while approach to the international law 
of space depends upon the answer given to the question: What kind 
of world do we live in today? The answer must give due weight to 
the interrelatedness of the present world. This has in no small meas- 
ure been brought about by the scientific and technological revolution. 
Mankind, in the age of the atom and the era of space, has been pro- 
vided with challenges and responsibilities so awesome as to be almost 
different in kind from traditional problems. 

But, it is not just a world of science and technology. It is also a 
world of morality and law. Where there are common moral purposes 
and a mutuality of interests, there may be not only international law 
and international organization, but there may be a relatively mature 
international legal-political system. The needs for a minimum world 
public order have been delineated. Foremost among these needs, 
other than the more ultimate goal of a legal order more comparable 
with a typically advanced national legal order, is an acceptable ap- 
proach to the use of national force or coercion. Under international 
law a nation-state is permitted to pursue its security, defense, and 
peace-preserving needs. This function may also, under existing in- 
ternational law, be performed by a collection of nations. Internation- 



136 Brierly, The Law of Nations 45 (4th ed. 1949). 

137 Stone, supra note 135, at 4. He adds that those who wield large power in 
the world community must "share certain common ethical convictions as to the 
basic principles of decency between man and man. But clearly in the relations 
of States such shared convictions are the exception." p. 5. Compare, Elihu Root, 
who, in noting at a different time greater adherence to principles of decency, 
said : "There is an indefinite and almost mysterious influence exercised by the 
general opinion of the world. The greatest and strongest governments recognize 
this influence and act with reference to it." Quoted in I Hyde, International 
Law 14 (2nd rev. ed. 1945). 



53 

al law in order to ensure the safeguarding of essential values is seek- 
ing — both where a single nation-state or group of nation-states is 
involved — to develop conformity to the concept of proportionality as 
controlled by the overriding principle of reasonableness. 

With the present proliferation of weapons possessing their vast 
volume of violence, the demand for a minimum world order has been 
accentuated. As the capacity for violence in all of the dimensions of 
the earth has grown, so also there has been a greater awareness of the 
need for practical processes to avoid the alternative of violence. Ex- 
pectations for greater human self-realization, as a parallel cause, have 
contributed largely to the same demand. 

The concept of the world rule of law has become a rallying point 
for the development of suitable legal principles and rules. When but- 
tressed by practical institutions to administer them, this approach 
has much relevancy, and international law becomes a part of the 
totality of the concept of power. 

Space, as man's newest usable environment, is in need of legal 
principles, rules, and processes beyond those presently existing, in 
order to assist him in achieving his expectations. From the very first 
it has been clear that law was pertinent to outer space. No matter 
what its other characteristics may be, it was never conceived of as a 
legal vacuum. Most will agree that in some small measure the devel- 
opment of an international law for space may contribute to a condi- 
tion in which man's mutual interests will prosper. 

The great practical dilemma will be to reconcile the use of space 
for scientific and peaceful purposes with other purposes. Military 
deterrence must be considered to be a nonaggressive, peace -support- 
ing purpose, along with other defensive military uses. Sharing the 
use of space with other nations for these purposes is mutually benefi- 
cial. It permits greater exploitation of the space resource ; it contrib- 
utes to the common interests; and, it does not seek to impose any 
artificial limitations upon the single scientific and technological unit 
which space is conceded to be. 

The foregoing conditions are essential to the existence of a mini- 
mum world order. Their realization would seem to meet the condi- 
tions laid down by Secretary of State Rusk when he enumerated the 
conditions of an agreeable community of nations. He said on May 25, 
1962, "we seek a community of nations which recognize their interde- 
pendence, a community marked by increasing cooperation, by order, 
and by law." 138 

138 "New Frontiers of Science, Space, and Foreign Policy," supra note 102, at 
935. 



CHAPTER II 

OUTER SPACE AND THE WORLD COMMUNITY 

A. CHARACTERISTICS AND CAPABILITIES OF SPACE 
VEHICLES 

1. Space Vehicles Distinguished from Other Devices 

Reference has already been made in a general way to the great 
variety of uses to which the different kinds of space devices may be 
put. Diversity also marks the physical characteristics of devices 
which can be placed above the area commonly in use by conventional 
aircraft. 

By aircraft I have in mind devices such as airplanes and balloons, 
which rely principally upon aerodynamic lift rather than rocket 
power to position themselves in the airspace. An aircraft means "any 
contrivance now known or hereafter invented, used or designed for 
navigation of or flight in the air." 1 Pursuant to Article 8 of the 
Chicago Convention on International Civil Aviation of 1944, no pi- 
lotless type aircraft "shall be flown without a pilot over the terri- 
tory" of a contracting State without the special permission of the 
overflown State. 2 Since this provision has not been used — nor have 
other provisions or considerations — as a basis for a protest against 
the use of space devices, it can be argued that there are legal and 
political, as well as physical, differences between space devices and 
aircraft. This conclusion is supported by the fact that both the 
former Convention for the Regulation of Aerial Navigation, Paris, 
October 13, 1919, 3 and Annex 7 of the Chicago Convention, 1944, 
provide that only machines capable of remaining in airspace by virtue 
of the properties of the air may be included within the term 
"aircraft." 4 



1 Federal Aviation Act of 1958, 72 Stat. 731, Sec. 101. There is no consensus 
as to the legal limits of air or airspace. It should be noted, however, that its 
limits are subject more to political and legal considerations than to purely 
scientific ones. The same holds true for outer space. 

2 61 Stat. 1180. 

3 International Commission for Aerial Navigation, 1 (1938). 

4 Annex 7 Chicago Convention 9. The effort to extend the coverage of interna- 
tional air law and the air law conventions to outer space and to space vehicles 
therein has been effectively repudiated and may now be regarded as a lost 
cause. See U.N. Doc. A/5100, 1721 (XVI) providing that outer space is free for 
exploration and use and not subject to national appropriation. Annex 2, infra, 
pp. 443-446. 

791-405-^66 5 



56 

A space vehicle has also been defined by the Congress. It means 
"missiles, satellites, and other space vehicles, manned and unmanned, 
together with related equipment, devices, components, and parts." 5 A 
refinement on this definition was proposed in 1960 but was not 
enacted. 6 

Pursuant to the 1960 proposal, which took into account the fact 
that the number and variety of spacecraft have steadily increased 
since 1957, the term "spacecraft" was to mean "devices, manned and 
unmanned, which are designed to be placed into an orbit about the 
earth or into a trajectory to another celestial body, including all in- 
strumentation, propulsion, and guidance contained therein." Launch 
vehicles were defined to mean "devices which propel and guide space- 
craft into an orbit about the earth or into a trajectory to another 
celestial body and includes all stages of multistage rockets used for 
such purposes." The term "space vehicle" was defined to mean 
"spacecraft, launch vehicles, and all other vehicles, except ballistic 
missiles, capable of flight without support from or dependence upon 
the earth's atmosphere, together with related equipment, devices, 
components, and parts; * * *" 7 The functional approach envisioned 
by these proposed definitions is a practical one, and these terms when 
employed hereafter will be used in the above sense. 

Thus, satellites, space platforms, sounding rockets, and space 
probes would be representative of space vehicles, whereas military 
rockets would fall within the ballistic missile category. The term 
"space device" has been selected to cover space vehicles and ballistic 
missiles. A commercial, passenger-carrying, rocket-propelled, hyper- 
sonic space-glider device has been proposed for use within the not 
too distant future. It is contemplated that ninety-five percent of such 
a vehicle's trajectory would be within 12 to 60 miles of altitude, 
with the balance varying from ground zero to 100 miles. 8 Hybrid 
capabilities, represented in the X-15 or the now defunct X-20 or 
Dyna-Soar type craft, defy easy classification between aircraft, space 
vehicle, and ballistic missile. 

2. Satellites 

Nonetheless, it is possible to identify significant differences be- 
tween satellites and missiles, as well as important similarities. The 
distinguishing feature of a satellite is that it orbits. The lifetime of a 
satellite, for example, may be very long. Thus, Vanguard I, launched 

5 National Aeronautics and Space Act of 1958, 72 Stat. 426, Sec. 103. 

6 H. R. 9675, 86th Cong., 2nd Sess. (1960). 

7 Ibid. 

8 Faneuf, "Application of Space Science to Earth Travel," in Ramo, ed. f 
Peaceful Uses of Outer Space 109 (1961). 



57 

on March 17, 1958, has a life expectancy of at least a century, and 
possibly much longer. 9 It is "stationed" in space, whereas the missile 
has a relatively short life expectancy, since it is "passing through" 
space to a fixed terminal point. On the other hand, the satellite does 
have a fixed, if dynamic destination, for it was placed in an orbit 
possessing known parameters and in most instances is designed to 
return to earth. The missile's path is referred to as a trajectory, al- 
though it is equally correct to describe its movement as following a 
hyperbolic orbit. The satellite's orbit may be circular, elliptical, or 
parabolic. The difficulty entailed in achieving a perfectly circular or- 
bit has resulted in most orbits following an elliptical course, with the 
point farthest from the earth being known as an apogee and the 
point nearest to the earth being referred to as the perigee. 10 

A satellite may be manned or unmanned. A ballistic missile on the 
other hand presumably will be unmanned, or if manned during a 
part of its life span, would not be manned at the time of its arrival 
on target. If manned it would be subject to manual guidance, but 
not otherwise. The satellite presumably would not serve as a weapon, 
per se, whereas the essential function of the missile would be for 
military purposes. However, this need not be the case, for the missile 
might take on the characteristics of a recoverable sounding rocket 
whose function is to acquire data which could be used as much for 
scientific and noncoercive purposes as for aggressive purposes. It will 
be recalled that military purposes fall into peaceful or aggressive 
categories dependent upon purpose or intent and conduct. 11 

The satellite is subject to atmospheric drag if its perigee comes 
repeatedly near the earth. The missile, on the other hand, is not sub- 
ject to a series of such atmospheric contacts. 

The satellite generally ascends and descends over a rather ex- 
tended territorial area and over a fairly substantial period of time', 
particularly in the case of a manned descent. It is in fairly close 
physical proximity to the subjacent land or sea area while engaged in 
making its descent. The missile, on the other hand, may have a very 
sharp upward movement followed by a very sharp retrograde move- 
ment, or it may pursue a fairly gradual trajectory. It will be present 
while in motion in areas used by both aircraft and space vehicles. 

Satellites have traditionally been launched from land areas, where- 
as at the present missiles have been launched from land and water 

9 One estimate places its estimated life at 1,000 years. 1 COSPAR Informa- 
tion Bulletins (1960). 

10 National Aeronautics and Space Administration, The Challenge of Space 
Exploration 16-18 (1959). 

11 Supra, Chapter I text at note 110, et seq. 



58 

areas. With the advent of operating space platforms, missiles, as well 
as satellites, will be launched from space. With the creation of seri- 
ous technical problems based on size, sound, and contamination, it is 
likely that satellites will soon be launched from water areas. 

Satellites are recovered wherever possible. Ballistic missiles may 
or may not be subject to recovery dependent on particular uses. 
ICBMs, for example, have achieved a "conventional status," and 
are now frequently "equated with terrestrial weapon systems." a 

There are also striking similarities between satellites and ballistic 
missiles. Both must traverse airspace while en route to and in re- 
turning from outer space. Their respective launch requirements 
depend upon the weight of the item launched and the distance pro- 
gramed. Both are essentially earth based. Both may be used for 
peaceful purposes. Both have been launched by military agencies in 
the United States and in the Soviet Union, which has no counterpart 
to the civilian National Aeronautics and Space Administration. Both 
are equipped to travel great distances and at tremendous speeds. They 
employ the same engines. Both are constructed so that they may be 
accurately returned to earth. Both are subject to remote control and 
are maneuverable after launch. They can send messages, be tracked, 
and engage in relay operations. They can be used for public and 
private purposes, particularly in the area of communications and 
transportation. 

Both can supply valuable scientific data, although the satellite by 
reason of its longer life span provides a better facility than the rock- 
et or missile. Their respective capabilities depend manifestly upon 
the instrumentation carried by each. Their observations, measure- 
ments, and calculations have provided data of great significance. As 
a new window to the world they have permitted comparative studies 
between ground-acquired data and that obtained in space. 13 

Representative American satellites include Explorer whose diverse 
objectives include scientific analysis of radiation fields, solar par- 

12 Horelick, The Soviet Union and the Political Uses of Outer Space, 34, at 
footnote 16 (1961). 

13 Odishaw, "The Satellite Program for the International Geophysical Year," 
35 Department of State Bulletin 280 (1956). The special quality of scientific 
data acquired through the use of rockets and other space vehicles has been 
noted by Berkner. He has pointed out that the murky qualities of the atmos- 
phere have given man a monochromatic view of the universe. "By escaping into 
space, man has dropped the 'gray' monochromatic vision of the insect — he can 
now see the full glory of the whole range of color that the universe provides. 
His knowledge and comprehension and eventually his control of his environ- 
ment will grow accordingly." "Earth Satellites and Foreign Policy," 36 Foreign 
Affairs 223 (1958). 



59 

tides, solar winds, artificial radiation fields, and many others. Figure 
1 illustrates the mean perigee, lowest perigee, and highest apogee of 
reported successful launches. Inclinations to the equator are depicted. 

Transit satellites have been designed to develop scientific facts re- 
lating to the shape of the earth and are contributing to the perfect- 
ing of an all-weather navigational system. Figure 2 also illustrates 
perigees, apogees, and inclinations. 

Discoverer satellites are used for general testing purposes, includ- 
ing observational and detection capabilities. Figure 3 illustrates peri- 
gees, apogees, and inclination characteristics. 

The Mercury Atlas has been used successfully as the United States 
man-in-space prototype. Figure 4 indicates a typical launch pattern. 
Figure 5 illustrates perigees, apogees, and inclination characteristics. 
Figure 6 shows the orbital path followed by the Mercury Atlas, 
Sigma Seven, in its six orbits on October 3, 1962. Figure 7 suggests a 
typical descent pattern for this type of satellite. 

Man's earth-bound distances are tiny when compared with dis- 
tances in space. Figure 8 depicts the different regions of the physical 
atmosphere and outer space through which space vehicles and bal- 
listic missiles pass. 14 It will be noted that all transiting space devices, 
including spacecraft, launch vehicles, ballistic missiles, space probes, 
rockets, and other types of missiles — but not conventional aircraft— r 
are equipped to use a substantial portion of the area indicated. 

It will also be observed that while nomenclature for regions of the 
atmosphere are standardized on the basis of variations in temperature 
with height (troposphere through exosphere), there is no common 
terminology for the regions beyond the atmosphere other than the 
generic one of outer space. It is possible from a political-legal point 
of view, as well as scientific, that a future conventional definition of 
outer space may include portions of the physical atmosphere. 

Figure 8 is intended only to demonstrate the vast distances in 
space. For example, while there are about 57 million square miles of 
land on earth and there are about 340 million cubic miles of ocean on 
earth, it has been estimated that there are about 56.5 quadrillion cu- 
bic miles in cislunar space. 15 According to some estimates, cislunar 
space possesses an inner region which is situated from 200 to 26,000 
miles above the earth surface. In this area there is relatively little 

14 It is difficult to fix distances precisely within the several atmospheric zones. 
It has been estimated that within the troposphere there is a maximum height 
varying from 28,000 feet at the poles to 54,000 feet at the equator. This has 
been summed up "One can no more define the upper limit of the atmosphere 
than the outline of a puff of smoke." Loebsack, Our Atmosphere 8 (1959). 

15 This is generally considered to be the region below the moon's orbit. 



60 

atmospheric drag on unmanned and one-man space vehicles. It is here 
that the United States has concentrated its greatest space-oriented, 
scientific, and technological skills and energy. It is in this area that 
the United States has obtained its largest scientific and technological 
leads. It is here that the largest number of earth-oriented space ve- 
hicles will operate, and it is in this area that "satellites can most 
effectively support or affect earthbound or seabased operations." 16 In 
the United States there has been common acceptance of such terms as 
Solar Space (Interplanetary Space), Galactic Space (Interstellar 
Space), and Extragalactic Space as descriptive of the physical areas 
in outer space. 17 

The atmospheric gradients in the areas ranging from the surface 
of the earth to approximately 200 miles in height have at present 
been the most meaningful to manned flight. It is in this relative area 
that a reentry corridor will be established for more distant manned 
flight. Affected in reentry will be such physical problems as the 
angle of descent, speed or velocity as influenced by drag, tempera- 
ture, deceleration time, and the overall evenness of the quality of the 
atmosphere. These and other factors require the establishment of an 
equilibrium glide pattern at an elevation of approximately 250,000 
feet (between 46 and 47 miles). The manned space vehicle will then, 
preparatory to landing, traverse at this and gradually diminishing 
heights for perhaps 600 miles according to past experience. 18 

Figures 9, 10, and 11 illustrate the perigees, apogees, and inclina- 
tion characteristics of Sputnik, Vostock, and Cosmos type satellites, 
respectively. 

Figure 12 indicates distances in the solar system. Figure 13 also 
reflects distances in the solar system, and illustrates times to reach 
the outlying planets at an arbitrary rate of speed of 25,000 miles per 
hour. 

The factual matter depicted in these illustrations is put forward to 
illustrate the actual proximity of space vehicles and other space de- 
vices, including missiles, to the earth's surface. No other conclusion is 
suggested, and as has been already noted the validty of the presence 
of such objects is a political-legal matter, rather than one derivable 
from the nature of the atmosphere. It is interesting to note, however, 
that one commentator after examining the perigees and apogees of 

"Cagle, "The Navy's Future Role in Space," 89 United States Naval Institute 
Proceedings 92 ( 1963 ) . 

17 Hogan, "Legal Terminology for the Upper Regions of the Atmosphere and 
for the Space Beyond the Atmosphere," 51 AJ.I.L. 373-375 (1957) ; compare 
"The Space Frontier," 41 Air Force Magazine 47^8 (March 1958). 

18 Figure 7. 



61 




SMALLEST PERIGEE 117 MILES 
MEAN PERI 




EXPLORER 



DATE 



STATUTE MILES 







PERIGEE 


APOGEE 


1 


1 FEB 58 


224 


1,584 


3 


26 MAR 58 


117 


1,739 


4 


26 JUL 58 


163 


1,372 


6 


7 AUG 59 


157 


26,366 


7 


13 OCT 59 


346 


676 


8 


3 NOV 60 


252 


1,422 


9 


16 FEB 61 


395 


1,605 


II 


27 APR 61 


305 


1,113 


12 


15 AUG 61 


180 


47»00 


13 


26 AUG 61 


175 


606 


14 


2 OCT 62 


174 


61 ,1 90 


15 


27 OCT 62 


194 


10,917 



Figure 1. 



62 




MEAN PERIGEE 
STATUTE MILE 



PERIGEE JIT MILES 
OF ALL LAUNCHES 362.6 






TRANSIT 



DATE 



STATUTE MILES 
PERIGEE APOGEE 



IB 


13 APR 60 


216 


463 


2A 


22 JUN 60 


37T 


665 


3B 


21 FEB 61 


117 


511 


4A 


29 JUN 61 


534 


623 


4B 


15 NOV 61 


569 


712 



Figure 2. 



63 




LARGEST 
ERIGEE 
08 MILES 





APOGEE 

1,032 

MILES 



SMALLEST PERIGEE 99 MILES 




MEAN PERIGEE 




DISCOVERER 



DATE 



STATUTE MILES 







PERIGEE 


APOGEE 


1 


28 FEB 59 


184 


407 


2 


13 APR 59 


152 


225 


5 


13 AUG 59 


135 


456 


6 


19 AUG 59 


131 


528 


7 


7 NOV 59 


99 


519 


8 


20 NOV 59 


120 


1,032 


31 


17 SEP 61 


152 


255 


32 


13 OCT 61 


147 


246 


34 


5 NOV 61 


134 


637 


35 


15 NOV 61 


147 


173 


36 


12 DEC 61 


148 


280 


38 


27 FEB 62 


208 


308 



Figure 3. 



64 




65 









'' : 



LARGEST 
/APOGEE 



MEAN PERIGEE OF ALL LA 




HBBBfc iiiiii ii m Orli j 




MERCURY ATLAS 





DATE 


STATUTE MILES 
PERIGEE APOGEE 


4 


13 SEPT 61 


100 


159 


5 


29 NOV 61 


100 


148 


6 


20 FEB 62 


100 


163 


7 


3 OCT 62 


100 


176 



Figure 5. 



66 







►— • 




01 
(0 




as 






y^ 




to 




«c 












10 




=» 




5 

CO 




oo 






c=» 









H— 




h 




=g 




8 












H— 




(0 




««sC 




< 




■naarf 

UJ 


• 




O* 


uu 




s 


cat: 




H-; 


OC 







CO 


H— 






««C 


et 




UUI 


se 


y 




fnN 




5 




mmmm 


ea 






—J 


•OS 


< 




5= 


ca 


2 




c/» 


^^ 





*« 


«•« 


■MM 





i 



67 




u 



M- 



68 




FIGURE 8 

REGIONS Of THE ATMOSPHERE 
iiMD OUTER SPACE 



Figure 8. 



69 




SPUTNIK 





DATE 


STATUTE MILES 
PERIGEE APOGEE 


1 


4 OCT 57 


141 


588 


2 


3 NOV 57 


140 


1038 


3 


15 MAY 58 


140 


1,168 


4 


15 MAY 60 


194 


229 


5 


19 AUG 60 


191 


191 


6 


1 DEC 60 


116 


165 


7 


4 FEB 61 


139 


204 


8 


12 FEB 61 


123 


198 


9 


9 MAR 61 


114 


155 


10 


25 MAR 61 


111 


153 



Figure 9. 



70 




SMALLEST 
PERIGE 
111 MILES 



LARGEST PERIGEE 114 MILES 

MEAN PERIGEE OF ALL LAUNCHES 112.2F 
STATUTE MILES 




VOSTOK 





DATE 


STATUTE 


MILES 






PERIGEE 


APOGEE 


1 


12 APRIL 61 


112 


203 


2 


6 AU6UST 61 


111 


160 


3 


11 AUGUST 62 


114 


156 


4 


12 AUGUST 62 


112 


160 



Figure 10. 



71 




COSMOS 



DATE 



STATUTE MILES 
PERIGEE APOGEE 



1 


16 MAR 6 2 


135 


609 


2 


6APR 62 


123 


840 


3 


24 APR 62 


131 


415 


4 


26APR 62 


186 


206 


5 


28MAR 62 


118 


908 


6 


30JUN 62 


148 


187 


7 


28 JULY 62 


125 


218 


8 


18 AUG 62 


152 


375 


9 


27 SEPT 62 


187 


220 


10 


17 OCT 62 


130 


236 


11 


200CT62 


152 


572 



Figure 11. 



791-405^66- 



72 




73 




74 

some launches, also selected by the author, stated "These are all 
wholly or partly in the Earth's atmosphere and, assuming that the 
sovereignty of States extends to approximately 300-500 miles, within 
the national airspace of the countries over which they pass." 19 

From the foregoing data, particularly that illustrating the low 
perigees usually employed by sophisticated satellites, it becomes ap- 
parent that there is a need to formalize their right to enter, and the 
conditions upon which they may enter, airspace superjacent to na- 
tional areas. This may even result in an express agreement as to the 
upward limit wherein a state may exercise either sovereignty or non- 
sovereign controls in superjacent airspace. "One can see from the 
example of Project Mercury [manned flights] that it would be rela- 
tively easy for even a very small country to avoid infringing on the 
territorial airspace of another state in the launch phase if the up- 
ward limit [of sovereignty] were set at 50 miles, while the problem 
would become much more complicated if it were set at 100 miles." 20 
The same comment applies to landing procedures, particularly if the 
spacecraft is designed to return to the land surface of the earth. The 
situation will be significantly affected by the future existence or non- 
existence of a rule of law permitting innocent passage of space ve- 
hicles through national airspace while undergoing launch or engag- 
ing in landing. 






3. Orbiting Space Platforms 

The fact that a space platform will be capable of orbiting around 
the earth or other planets qualifies it as a space vehicle. Its major 
difference from a typical satellite will be its function as a large in- 
strument platform. Presumably it will possess the same general char- 
acteristics as less complicated satellites, and would appear to be sub- 
ject to the same political-legal rights and duties. 

A recent description of this craft suggests that it will take various 
forms and will be launched frequently. "The power supply and the 
telemetry system are common to all experiments abroad. The design 

19 Cheng, "Problems of Space Law," in Legal Problems of Space Exploration 
667 (1961). There is, at the present time, absolutely no basis upon which such 
an assumption can be supported, and Cheng notes, p. 668, that the area of 
national airspace has not been defined nor its limits agreed upon. 

20 Johnson, "Remarks," 1961 American Society of International Law Proceed- 
ings 168 (1961). He carefully notes that the right to engage in peaceful uses is 
unaffected by the absence of a rule fixing the limits to sovereignty, and that the 
latter is no guide to the right of a State to exercise "legitimate self-defensive 
measures in outer space. The extent of territorial sovereignty is not the criter- 
ion for such matters." Ibid., 167. 



75 

permits the carrying of a number of independent experiments and 
the ready change of experiments between different launchings. The 
observatories now scheduled include the orbiting solar observatory, 
the orbiting astronomical observatory, and the orbiting geophysical 
observatory in either an eccentric or a polar orbit." 21 

4. Bidimensional Devices 

The X-15, like other space vehicles and guided missiles, is suscep- 
tible to areas containing both maximum and minimum amounts of 
atmospheric content. Although it is frequently referred to as a hy- 
personic rocket aircraft, it is probably more proper technically to 
describe it as a rocket vehicle, or spacecraft. While it functions 
equally well "in or outside the air * * * the maneuvering must 
depend on apposite propulsion and guidance principles." 22 This con- 
clusion is based on the X-15's dependence for its own propulsion ca- 
pacity on rocket power and the fact that it does not employ air 
breathing devices. As a rocket craft it may be catapulted into an 
orbit above the atmosphere's aerodynamic limits where its movement 
will depend upon a previously determined trajectory. In the future it 
will use its own propulsion to leave the earth's surface and to move 
freely in the atmosphere and in outer space. Its configuration per- 
mits it to use the air for guidance when situated in the atmosphere. 

The achievements of the X-15 have been impressive. By 1963 one 
had reached an altitude of 351,000 feet (over 66 miles), another had 
achieved a speed of 4,159 miles per hour, and more than a few had 
consistently demonstrated the ability to operate in an area above 99.9 
per cent of the earth's atmosphere. During 1963 it has been estimated 
that the X-15 would climb to 80 miles. At this height it would be but 
20 miles below the usual perigee height of manned space vehicles. At 
maximum speeds such devices have arrived at near-orbital velocities 
and could be placed in orbit. They have demonstrated a capacity to 

21 Porter, "The Space Program of the USA, A Summary," 11 C08PAR Infor- 
mation Bulletin 91 (1962). For a non-technical description of the six para- 
meters used to describe the orbit of an artificial satellite see Walker, "The U.S. 
Navy Navigational Satellite System," 5 Navy 35 (1962) ; Space Handbook: 
Astronautics and Its Applications, 85th Cong., 2d Sess., Washington, 127-130 
(1959). 

22 Haley, "Survey of Legal Opinion on Extraterrestrial Jurisdiction," Legal 
Problems of Space Exploration 720 (1961). The X-20, Dyna-Soar Project, 
(which has been cancelled) was to use both centrifugal force and aerodynamic 
lift. In space its attitudes were to be controlled by reaction jets mounted on 
the glider. The use of retro-rockets would have permitted it to complete its 
orbit and return to the heavier atmosphere. 



76 

reenter heavier atmosphere from near-orbital velocities, to maneuver 
in the atmosphere, and to engage in conventional landings. 

The legal-political problems affecting the X-15 type of rocket ve- 
hicle are similar to those for space vehicles and guided missiles. It 
should be regarded as a manned, maneuverable, and recoverable 
rocket vehicle. 

5. Multidimensional Devices 

Inner space as well as land surfaces, ocean surfaces, airspace, and 
outer space, may soon come to be frequently employed by space ve- 
hicles. The ocean surfaces are already used for range support and 
recovery of space vehicles and their occupants. The subsurface areas 
of the oceans have demonstrated great promise as a launching me- 
dium for satellites and other space vehicles. Their utility as a suit- 
able environment for the Polaris type guided missile is well known. 

Numerous physical factors limit the launching of space vehicles 
from land surfaces, and launch problems are enhanced by the need to 
develop larger and heavier launching equipment. The resultant noise, 
difficulty of transportation over land to a launching site, dangers of 
explosion at the launching pad, problems involved in destroying a 
vehicle which has gotten off course, attendant damage and liability 
problems, and all of the problems connected with radiation and other 
contamination resulting from nuclear energy argue for sea launches. 
The Navy's Hydra project envisions successful sea launches of heavy 
devices. 23 The probability of extended multidimensional employ- 
ment of space vehicles demonstrates the need for a close interrela- 
tionship between the law of the sea and the law of outer space. 

The foregoing empirical data also supports the view that conven- 
tional distances — for example, as measured on the high seas, or on 
land — with attendant security implications, no longer are very mean- 
ingful for space activities. It is well known that spacecraft are ca- 
pable of reaching and maintaining very precise orbital paths and 
that missiles and rockets can be very accurate when directed from 
one surface point to another. It may safely be assumed that increas- 
ing exactness will be a principal characteristic of all space devices. 24 
Observation and tracking capabilities will also become more 
efficient. 25 As space vehicles of all types become more sophisticated, 

23 Homer, "Launching Pads Go to Sea," 5 Navy 32—3 (1962) ; compare Cagle, 
supra, note 16, at 92. 

24 Manned Space Flight Program of the National Aeronautics and Space 
Administration: Projects Mercury, Gemini, and Apollo, 87th Cong. 2d Sess., 
Washington, 1962. 

25 Space Handbook; Astronautics and Its Applications, supra, note 21, 77-84. 



77 

and as their physical characteristics and capabilities are more gener- 
ally understood, their significant impact upon the social complex will 
achieve ever-increasing recognition. In these circumstances there is a 
need for avoiding the appearance of a legal vacuum in outer space. 

B. USERS OF SPACE VEHICLES 

Space vehicles have not only been used in a great variety of ways. 
They have also been precisely designed so that they take many forms 
in the course of serving a substantial number of special functions. 
Further, they have been put to use by at least three types of clientele, 
namely, public users, private users, and mixed public-private users. 
The present section will demonstrate the particular interests of these 
three types of users. 

1. Public Users 

The public user of space vehicles has been the nation-state and 
international organizations, composed of nation-states, particularly 
created to engage in space activities. Use by the nation-state will be 
discussed first. 

a. Nation-States 

Although the age of space is frequently said to date from October 
4, 1957, as a result of the successful launching of Sputnik I on that 
occasion, there were many important, if less spectacular, space ac- 
complishments well prior to that time. The V-l and V-2 rocket in 
Germany, the V-2 in the United States, the Bumper type research 
rocket, the Aerobee family of research rockets, and the Viking re- 
search rocket — with the German devices being used prior to 1942 — il- 
lustrate successful accomplishments at altitudes ranging roughly 
from sixty to two hundred miles. 26 All launched substantial payloads 
prior to October, 1957, and in many instances scientific data of vast 
importance was acquired. The devices were intended to implement 
national space programs. 

Pursuant to the provisions of Part B, paragraphs 1 and 2 of the 
United Nations General Assembly resolution 1721 (XVI), the United 
States since March 5, 1962, and the Soviet Union since March 24, 
1962, have registered the fact of space vehicles launched into sus- 
tained orbit or beyond. The initial American report of March 5, 1962, 
recorded launches dating from February 1, 1958. 27 The initial Soviet 
report of March 24, 1962, recorded launches dating from October 4, 

26 A Chronology of Missile and Astronautic Events, 87th Cong., 1st Sess., 
Washington, 155-159 (1961). 

27 U.N. Doc. A/AC.105/INF.1. 



78 

1957. 28 These two nations continue to submit such reports periodi- 
cally to the United Nations. In addition to American and Soviet 
launches, the United Kingdom in conjunction with the National Aer- 
onautics and Space Administration launched the 132 pound Ariel 
(1962 Omicron 1) on April 26, 1962. According to the American 
report to the United Nations, the Ariel was a United Kingdom satel- 
lite launched by a United States launch vehicle. 29 With a perigee of 
242/247 statute miles, an apogee of 754/643 statute miles, and an in- 
clination of 53.9/53.8 degrees, it was in active orbit at the time of this 
writing. 

Further, the government of Canada in conjunction with the Unit- 
ed States launched the 320 pound Alouette (1962 Beta Alpha 1) on 
September 28, 1962. According to the American report to the United 
Nations, the Alouette was a Canadian satellite launched by a United 
States launch vehicle. 30 With a perigee of 620/623 statute miles, an 
apogee of 638/641 statute miles, and an inclination of 80.5 degrees, it 
was in active orbit at the time of this writing. At the close of 1962, 
the United States reported the presence in orbit or beyond of 119 
space vehicles (including the British and Canadian satellites). 31 On 
December 28, 1962, the Soviet Union submitted a report to the Unit- 
ed Nations concerning launchings of artificial earth satellites and 
space objects. Pursuant to the numbering system employed by the 
Soviet Union, which does not purport to be a complete report of 
launchings, on November 1, 1962, the Soviet's Serial 29 was an- 
nounced. This was a space rocket carrying the "Mars 1" automatic 
station to the neighborhood of the planet Mars. 32 Although many 
nations have plans for space programs, no national launchings, other 
than those referred to above, have been registered with the United 
Nations. 



28 U.N. Doc. A/AC.105/INF.2. 

29 U.N. Doc. A/AC.105/INF.7. 

30 U.N. Doc. A/AC.105/INF.20, NASA News Release No. 62-189, September 22, 
1962. 

31 U.N. Doc. A/AC.105/INF.28. As of midsummer, 1964, there were 100 United 
States, one Canadian, and 16 Soviet spacecraft in orbit. 4 SPT Space Log 40 
(Summer, 1964). 

32 U.N. Doc. A/AC.105/IXF.24. According to 2 SPT Space Log 7 (1962) there 
were eight Soviet spacecraft in orbit as of November 21, 1962. On February 1, 
1963, there was doubt whether the Soviets had launched four space shots be- 
tween September 1, 1962 and January 5, 1963. If launched, as was probable, no 
official announcement had been made by February 1, 1963. Christian Science 
Monitor, February 1, 1963. On Jtne 6, 1963, Ambassador Stevenson called at- 
tention to six unreported launches by the Soviets during the period August 25, 
1962 and January 4, 1963. United States Mission to the United Nations, (Press 
Release No. J t 219, 2) ( June 6, 1963 ) . 



79 

In addition to the national launches referred to above there has 
been a developing interest in the use of space vehicles and ballistic 
missiles by over forty other countries. Operational activities have 
been carried on separately and in cooperation with one or more addi- 
tional States. 

During 1962, and subsequently, the United Kingdom, France, Ger- 
many, Belgium, Italy, and India individually engaged in rocket 
launchings or made extensive plans to do so. Interesting space pro- 
grams were also being carried forward in Argentina, Australia, Can- 
ada, Czechoslovakia, Israel, Japan, the Netherlands, Pakistan, Peru, 
Poland, Union of South Africa. 33 Britain has entered into an agree- 
ment with Australia to make use of the Woomera rocket range, and 
France has agreed with Algeria to employ a Sahara test range at 
Colomb-Bechor until 1967. 34 

Further, joint national efforts involving rocket launchings and a 
space research center have been undertaken by Norway, Sweden, and 
Denmark. A joint research center has been established at Rao, Swe- 
den, and rocket launchings have taken place in both Norway and 
Sweden. During the summer of 1962 two sixty-eight mile launches 
were successfully made at Nidsel, Sweden. These were accomplished 
as a result of cooperation between the United States and Sweden, 
and the Nike-Cajun two-stage rocket was employed. 

Also, during the summer of 1962, a joint Norwegian-Danish pro- 
gram was carried on at the Loften Islands of Norway, above the 
Arctic Circle. Two one-hundred mile probes were made using the 
Nike-Cajun two-stage rocket. 35 

Cooperative activities have been carried on between nations in 
such fields as tracking of space vehicles and missiles. Thus, the Unit- 
ed States has arranged with sixteen nations for the operation of four 
separate tracking networks. The first American tracking program 
was created in order to monitor the presence of Explorer I, launched 
on January 31, 1958. Countries assisting the United States in 1963 in 
these efforts include The Argentine Republic, Australia, the United 
States of Brazil, Canada, The Republic of Chile, The Republic of 
Ecuador, The United Kingdom, India, Iran, Japan, The United 

33 Orlen, "Space Programs of Other Nations," Odishaw, ed., The Challenges of 
Space 204-232 (1962). India has initiated an equatorial Sounding Rocket Facil- 
ity, U.N. Doc. A/AC.105/8. Detailed reports of national activities are contained 
in U.N. Doc. A/AC.105/7, and Add. 1, 2, 3. 

34 The French have successfully tested the Topaze rocket which will serve as 
the second stage of the satellite launcher Diamant. It is their plan to launch a 
150 pound satellite in 1965. 

35 Christian Science Monitor, January 5, 1963. 



80 

Mexican States, The Netherlands, The Federation of Nigeria, The 
Republic of Peru, The Republic of South Africa, and Spain. 36 

Three additional cooperative programs of importance have been 
entered into between the United States and other countries. Thus, on 
November 5, 1962, the United States and Japan agreed to use experi- 
mental communication satellites for relaying radio signals. Coopera- 
tion between the two nations was intended to make use of the facili- 
ties of the United States Communications Satellite Corporation. The 
latter was created by Act of Congress on August 31, 1962. 37 

An agreement of great interest was entered into between the Unit- 
ed States and the Soviet Union in 1962, and announced at the United 
Nations on December 5, 1962. It established a bilateral cooperative 
program for the peaceful, scientific exploration of outer space in 
three fields, namely, meteorology, a world geomagnetic survey, and a 
passive communications satellite (Echo II). 38 

On February 18, 1963, the United States and France entered into 
an agreement whereby a cooperative program to investigate the prop- 
agation of Very Low Frequency electromagnetic waves was estab- 
lished. The agreement looked toward the launching of sounding 
rockets initially into regions 50 to 63 statute miles above the earth. 
Later it was planned to launch a scientific satellite into earth orbit in 
the region above 63 statute miles. During the first phase of the effort 
American sounding rockets would carry French instrumented pay- 
loads. During the second phase a French satellite would be employed 
and would be launched by an American vehicle. 39 

The foregoing international agreements, as well as comparable fu- 
ture ones, and the agreements entered into prior to and during the 
International Geophysical Year (IGY), 1957-1958, 40 suggest a strong 
national commitment to important space activities. They also offer 
evidence of limited international cooperative efforts in space, 
b. International Entities 

A multitude of proposals have been put forward concerning the 
role of international bodies in outer space. The function of one such 






ss NASA News Release No. 63-10, January 27, 1963. 

37 76 Stat. 421. 

38 U.N. Doc. A/C.l/880 ; NASA News Release No. 62-257, December 5, 1962. 
See pp. 91-95, 275-276 infra for an analysis of this agreement. Annex 22, infra, 
pp. 482-488. 

39 NASA News Release No. 63-49, March 11, 1963. 

40 See pp. 127-187 infra for the role of the IGY in developing the international 
law of outer space. 



81 

group of institutions would be to manage the political-legal future 
of space. The function of another proposed international body would 
be to operate cooperative space programs and launching facilities. 

There now is no doubt that the United Nations will be the princi- 
pal public international institution engaged in the management and 
development of political and legal principles for outer space. 41 Other 
institutions, particularly the specialized agencies of the United Na- 
tions, have a direct interest in certain areas of space law. This was 
recognized in General Assembly Eesolution 1721 (XVI) of 1961. Part 
C of that resolution requested a report from the World Meterologi- 
cal Organization on weather and atmospheric matters affecting 
space. Part D of that resolution requested a report from the Interna- 
tional Telecommunication Union on communications matters, partic- 
ularly radio frequency allocations, affecting space. The Assembly 
Eesolution specifically referred to the role of UNESCO in space 
matters, and also acknowledged the space interests of other special- 
ized agencies as well as governmental and nongovernmental organi- 
zations. The principal role of the nongovernmental Committee on 
Space Research (COSPAR) of the International Council of Scien- 
tific Unions (ICSU) was acknowledged in the United Nations Reso- 
lution. COSPAR evolved from the organizational entities which had 
been interested in space research during the IGY. The International 
Civil Aviation Organization (ICAO) is concerned with the develop- 
ment of space law inasmuch as space vehicles during launch and 
landing traverse that portion of the atmosphere dealt with in the 
1944 Chicago Convention. Schwartz has listed nine areas in which 
ICAO has an interest in space, including identification, investigation 
of accidents, assignment of radio frequencies, search and rescue, and 
liability. 42 The International Atomic Energy Agency (IAEA) 
also has an interest in space operations and law. 

Two recently created international organizations possess impor- 
tant interests in the practical management of space activities. A Con- 
vention providing for the establishment of a European Organization 

41 Other proposals may be seen in The Colloquia on the Law of Outer Space, 
in articles collected in Legal Problems of Space Exploration (1961) and in 
Space Law, A Symposium (1959). Compare, Mankiewicz, "The Regulation of 
Activities in Extra-Aeronautical Space, and Some Related Problems," 8 McGill 
Laiv Journal 199-207 (1962). The United Nations in 1962 decided to sponsor 
international sounding rocket facilities on the geomagnetic equator in time for 
the International Year of the Quiet Sun (IYQS). U.N. Doc. A/RES/1802 
(XVII) 3. Annex 3, infra, pp. 446-^50. 

42 Schwartz, International Organizations and Space Cooperation 93-94 (1962). 
Compare, Schwartz, "International Space Organizations," in Odishaw, ed., The 
Challenges of Space 241-266 (1962). 



82 

for the Development and Construction of Space Vehicle Launchers 
(ELDO) was signed in London in March and April, 1962. 43 An 
Agreement creating a European Space Research Organization 
(ESRO) was signed in Paris on June 14, 1962. 44 

ELDO contemplates thirteen active members, namely, Australia, 
Austria, Belgium, Denmark, France, Federal Republic of Germany, 
Italy, Netherlands, Norway, Spain, Sweden, Switzerland, and the 
United Kingdom. However, only the representatives of Australia, 
Belgium, France, Germany, Italy, the Netherlands, and the United 
Kingdom signed the Convention and the Protocol. 

The goals of ELDO include the development and construction of 
space vehicle launchers and their equipment suitable for practical 
applications and for supply to eventual users. ELDO was charged 
with the peaceful use of its launchers and equipment, and is bound to 
supply participating members with know-how and practical 
applications. 45 The Convention authorizes the Organization to 
use national facilities, but it may also establish additional facilities, 
if required. 46 

The participating States agreed that ELDO's initial program was 
to consist in "the design, development, and construction of a space 
vehicle launcher using as its first stage the rocket 'Blue Streak' and 
with a French rocket as its second stage." 47 The program envisioned 
the design and development of other parts for the system and of a 
series of satellite test vehicles. Firings were to be conducted at 
Woomera, Australia, during the developmental period, and during 
second and third stages of development such firings are to be carried 
out wherever economic and technical conditions are most favorable. 48 

At this writing ELDO is still in the organizational stage. Its orig- 
inal budget was fixed in the neighborhood of two hundred million 
dollars. It is a highly specialized regional organization of States, 
and takes into account the large costs involved in national space pro- 
grams. It is a technical body having defense implications, and its 
success will be measured by its ability to develop and construct large 
satellite launchers. When it becomes operational, it will be the first 
large multimembered international space organization engaging in 

43 Miscellaneous No. 17 (1962). Cmnd. 1731. A Protocol establishing a Prepar- 
atory Group to set up the Organization was signed on May 9, 1962. Treaty 
Series No. 68 (1962), Cmnd. 1895. 

"Miscellaneous No. 30 (1962), Cmnd. 18^0. 

45 ELDO Convention, Article 2. 

46 Ibid., Article 5. 

47 Ibid., Article 16. 
« Ibid. 



83 

the same kind of activities now common to the United States and the 
Soviet Union. 

ESRO's members will include all members of ELDO, except Aus- 
tralia. The goals of ESRO include the carrying out of scientific re- 
search and related technological activities for sounding rockets, sat- 
ellites, and space probes. The organization will obtain launching 
vehicles and arrange for their launching, and will engage in such 
administrative detail as is required to accomplish these purposes. 
Pursuant to Article VI of ESRO's Final Act, the organization will 
establish and operate the facilities required for its program. Launch- 
ings are intended to support scientifically valuable experiments, 
which will be the product of national and ESRO planning. The legal 
status of the organization is provided for in Article XIV of the Final 
Act, which states that "The Organization shall have legal personal- 

ity." 

In order to achieve its scientific and technological goals, the 
members decided to establish a European Space Technology Center 
in Delft, Holland; a Data Center in Darmstadt, Germany; a north- 
ern range for the launching of sounding rockets at Kiruna, Sweden, 
and an official laboratory in Italy. Its specific objectives between 
1962 and 1970 include: 

(a) the firing, at a rate building up to a steady level of the 
equivalent of about 65 medium sized vehicles per year by the 
third year of its existence, of a variety of types of fully-instru- 
mented vertical sounding rockets containing mainly nationally 
financed experiments; 

(b) the successful launching, annually, from the fourth year 
of its existence, of two fully-instrumented small satellites in 
near-earth orbits (i.e., carrying payloads up to about 200 kilo- 
grammes) again containing mainly nationally financed experi- 
ments ; 

(c) the successful launching, from the sixth year of its exist- 
ence, of two fully-instrumented space probes or major satellites 
(i.e., requiring large launching vehicles). 49 

ESRO has plans for putting 10 sounding rockets into space during 
1963. It hopes to launch 40 during 1964, and as many as 65 each year 
during succeeding years. The small satellites programmed under 



49 Final Act of the Conference, supra, note 44. Protocol Concerning the Fi- 
nancing of the European Space Research Organization During Its First Eight 
Years of Existence, 20. 



84 

part (b) above will weigh between 1,100 and 2,200 pounds. Lighter 
payloads will be sent to the moon. 50 

The Organization plans to spend in the neighborhood of 
$300,000,000 during the 1962-1970 period. It will not build space ve- 
hicles, but will obtain them from ELDO, with whom it is expected 
there will be close cooperation. There is also a possibility that it will 
obtain space vehicles from the United States. A hope has been ex- 
pressed that ELDO, ESRO, and NASA will not engage in duplica- 
tory activities. Director James E. Webb of NASA has stated 
"NASA has officially indicated to both the new organizations its read- 
iness to enter into cooperative programs on the same basis as in our 
bilateral arrangements." 51 

Through such arrangements as these, as well as through activities 
and efforts at the United Nations, scientific and technological know- 
how will be extended continually to additional nation- states and to 
many types of international organizations. 52 The practical result will 
be to enlarge the number of effective participants in space activities, 
increase the number of space vehicles and other devices in space, 
enhance problems in all of earth's dimensions, and require the appli- 
cation of legal principles and rules to these various uses. 

2. Private Users 

a. Corporations 

The launching of the private, commercial, communications satel- 
lite, Telstar I, on July 10, 1962, marked the first large-scale use of 
outer space for nonpublic purposes. It was the first spacecraft built 
and financed by U.S. private enterprise. It was constructed by the 



50 New York Times, November 14, 1962. 

51 Christian Science Monitor, February 1, 1963 ; Schwartz, supra note 42 at 
95-99. 

52 Compare C. Wright, "The United Nations and Outer Space," in Odishaw, 
ed., The Challenges of Space 284: "The prevalent view among governments is 
that the United Nations needs to take cognizance of the role and activities of 
nongovernmental bodies organized by the international scientific community." 
In addition to ICSU and CO SPAR, these include International Year of the 
Quiet Sun (IQSY), World Magnetic Survey (WMS), and International Astro- 
nautical Federation (IAF). ICSU is composed of international unions represent- 
ing astronomy, biochemistry, biological sciences, crystallography, geography, 
history and philosophy of science, mathematics, theoretical and applied me- 
chanics, pure and applied physics, pure and applied chemistry, physiological 
sciences, scientific radio, and geodesy and geophysics. In 1960 eighteen national 
scientific institutions were represented in COSPAR, with the National Academy 
of Sciences representing the U.S. and the Academy of Sciences representing the 
Soviet Union. 2 CONSPAR Information Bulletin 1-2 (1960). 



85 

Bell Telephone Laboratories, and is owned by the American Tele- 
phone and Telegraph Company. 53 It circles the earth every two hours 
and 38 minutes, with a perigee of 593/588 statute miles and an apo- 
gee of 3503/3508 statute miles. It is in active orbit at an inclination 
of 44.8 degrees. It was launched for the Company by NASA, which 
was compensated for this service. A Delta type launch vehicle was 
employed. 

Telstar has been referred to as a communications superhighway 
through space. Its record of "firsts" include the first "telephone call 
via an active communications satellite ; the first taped TV pictures to 
go across the Atlantic via satellite; the first live TV program seen 
simultaneously in Europe and the United States; the first facsimile 
photograph transmitted via satellite across the Atlantic; the first 
facsimile newspaper so transmitted." 54 With the use of Telstar it 
becomes possible to make a direct dial telephone call to any part of 
the world, to establish closed circuit TV links on an international 
basis, and to transmit electronic data and to receive, transmit, and 
amplify ground messages from great distances. In order to accom- 
plish these tremendous feats, communications stations located on the 
ground in France, Italy, and the United Kingdom cooperated with 
those situated in the United States. 

Telstar encountered abnormal radioactivity almost from the time 
of its launch. On July 9, 1962, a United States nuclear device was 
exploded above Johnson Island in the Pacific as a part of "Operation 
Starfish." The explosion took place approximately 200 miles in 
height and produced a force equal to approximately 1,400,000 tons of 
TNT. Subsequently, on October 22 and 28, 1962, the Soviet Union 
caused nuclear explosions to take place in the atmosphere at levels 
through which Telstar's orbital pattern caused it to transit. The So- 
viet explosions increased electrons in the area of Telstar's orbital 
pattern by 100 to 1000 times, and caused Telstar to ingest 100 times 
more radioactivity than it was equipped to withstand. The imme- 
diate result of this artificial increase in the harmful radioactivity 
within the satellite's orbital pattern was to damage Telstar's transla- 
tors. The increased radioactivity prevented Telstar from understand- 

53 General Electric, as well as other companies, have explored "The feasibility 
of establishing a commercial satellite system for long-distance communica- 
tions." Cordiner, "Competitive Private Enterprise in Space," Ramo, ed., Peace- 
time Uses of Outer Space 226, 230-232. Recognition of the role of the private 
user of space is contained in Valladao, "The Law of Interplanetary Space," 
Second Colloquium 166. 

54 American Telephone Share Owners' Quarterly 5, 8 (1962). 



86 

ing and obeying commands broadcast from the earth. 55 This resulted 
in a disruption of the intended commercial uses of the satellite, with 
attendant losses and additional costs. 

On February 21, 1963, Telstar I's communication's contact with 
the earth ceased to function. Radiation had modified the functioning 
portions of the exterior solar cells which convert sunlight to solar 
energy. It had also rendered inoperative the communication module 
which on command from the ground turned on the satellite's com- 
munication system. Subsequently, its operational effectiveness has 
been somewhat restored. Telstar II, a 175 pound experimental com- 
munications satellite, was successfully launched at Cape Canaveral 
(Kennedy) on May 7, 1963. It attained an inclination of 43 degrees, 
with an apogee of 6690 miles and a perigee of 658 miles. Telstar II 
relayed a test transmission across the Atlantic on its fourth orbit 
from American Telephone and Telegraph's experimental station in 
Andover, Maine. Even prior to launch of Telstar II, it has been esti- 
mated that the American Telephone and Telegraph Company has 
spent in excess of 50 million dollars on such projects. 

b. Other Private Users 

Privately oriented launches in the United States have also served a 
recreational or avocational goal. At the instance of organized radio 
amateurs composing the "American Radio Relay League," two short 
time orbital satellites have been placed in outer space. On December 
12, 1961, Oscar I was placed in space with a perigee of 146 statute 
miles and an apogee of 258 statute miles, and an inclination of 81.2 
degrees. It remained in orbit for 50 days. 56 

On June 1, 1962, Oscar II was orbited with a perigee of 129 statute 
miles and an apogee of 240 statute miles, and an inclination of 74.3 
degrees. It remained in orbit 18 days. Both satellites weighed ten 
pounds and both were supervised and launched by the United States 
Air Force Systems Command. 57 As is well known, there have also 
been private launches in the United States, and presumably else- 
where, of limited height-sounding rockets. 

3. Public-Private Users 

Because the space race has become so important to the future of 
nations, many forms of organization have been or will be used to 



55 Christian Science Monitor, January 28, 1963. Excessive radioactivity has 
also adversely affected transmissions on two U.S. weather satellites (Transit 4 
B and Traac), solar cells on the Ariel multi-purpose scientific satellite, and 
caused postponement of the launch of Anna, an American geodetic satellite. 

56 STL Space Log 1&-19 (December, 1962). 
«7 iud., 38-39. 



87 

maximize national claims. Although nations, or combinations of na- 
tions, now appear to possess a monopoly over the launching of satel- 
lites and heavy space devices — and this confers upon them a monop- 
oly over devices to be found in areas distant approximately 50 or 
more miles from the earth — this situation need not necessarily al- 
ways prevail. While the free enterprise system with its emphasis on 
private activity is not universal, it is clear that in some areas it is 
quite capable of operating complete space programs. Where such 
efforts are not feasible there is still the prospect of some form of 
mixed sharing of responsibilities between governmental and private 
managers. Additionally, there is the possibility of private operations 
with substantial support in the form of assistance and regulation 
from a governmental entity. Such operations may be conducted 
through a great variety of forms. 

The United States on August 31, 1962, by enactment of Congress 
authorized the creation of a private satellite corporation. Pursuant 
to Section 301 of the statute, the corporation was designated as a 
"profit" making entity "which will not be an agency or establishment 
of the United States Government." 58 The policy of the act is "to 
establish, in conjunction and in cooperation with other countries, as 
expeditiously as practicable a commercial communications satellite 
system, as part of an improved global communications network, 
which will be responsive to public needs and national objectives, 
which will serve the communication needs of the United States and 
other countries, and which will contribute to world peace and 
understanding." 59 The President in signing the Act called for the 
effective use of the American competitive free enterprise system in 
developing an effective communications system. 

There will be many points of contact between the government and 
the corporation established under the Act. Thus, the President of the 
United States was required to appoint incorporators, and was re- 
quired to give his approval to the initial articles of incorporation. 00 
The President is charged with the appointment of three of the fif- 
teen members of the Board of Directors. 61 When the corporation en- 
gages in foreign business as negotiations, it is obliged to notify the 
Department of State, and it is the duty of the latter to "advise the 



58 76 Stat £19, Section 301. The Act may be cited as the "Communications 
Satellite Act of 1962." The company is known as the Communications Satellite 
Corporation. 

59 Ibid., Sec. 102. (a). 

60 Ibid., Sec. 302. 
G1 Ibid., Sec. 303. (a). 

791-405—66 7 



88 

corporation of relevant foreign policy considerations." Further, "the 
corporation may request the Department of State to assist in the 
negotiations, and that Department shall render such assistance as 
may be appropriate." 62 The corporation must transmit to the Presi- 
dent and to the Congress periodic, comprehensive, and detailed 
reports as to its operations, activities, and accomplishments under 
the Act, 63 

The purposes and powers of the corporation are set forth in Sec- 
tion 305 of the Act. Generally speaking, the corporation will engage 
in the communications business and will use satellites and other 
scientific and technological equipment to achieve its private business 
purposes. Although the Act does not prohibit the corporation from 
establishing its own launching facilities, provision is made among 
the corporation^ authorized activities to "purchase satellite launch- 
ing and related services from the United States Government." 64 

Other countries, it may be expected, will consider the implementa- 
tion of their space programs through public-private combinations as 
well as via governmental agencies and wholly private activities. If 
the mixed approach is undertaken, it is quite possible that the Com- 
munications Satellite Act of 1962 will serve foreign instrumentalities 
with guidance for their actions. 

C. PROBABLE AND POSSIBLE USES OF OUTER SPACE 

Having considered some of the more important physical character- 
istics and capabilities of space vehicles — with emphasis upon present 
and future orbital patterns — and having also considered present and 
prospective users of space and space vehicles — with some emphasis 
upon legal forms through which operations are likely to be conduct- 
ed — it now becomes necessary to examine in some detail the probable 
and possible uses of outer space. Although emphasis was placed in 
Chapter I on the meaning given to the concept of "peaceful uses of 
outer space," namely, nonaggressive and beneficial uses, this Chapter, 
hereafter, will endeavor to systematize the particular functions of 
space devices. The term space device, as previously noted, will in- 
clude not only spacecraft, launching vehicles, and space vehicles, but 
also guided missiles. 

An attempt has been made to establish a limited number of major 
space functions. This has resulted in an analysis based on the follow- 
ing six activities: informational, scientific, commercial, military, so- 



62 Ibid., Sec. 402. 
tzibid., Sec. 404. (b). 
"Ibid., Sec. 305. (a) (3). 



89 

cial, and political. Such an analysis is not without its difficulties. 
Are, for example, such functions as commercial activities truly com- 
parable with political activities — one being principally operational 
and oriented around the performance of a service and the latter hav- 
ing to do with the more intangible product of policy formulation? 
Another more practical problem has to do with separating, for the 
purposes of analysis, functions which in fact are closely interrelated 
and even overlap. Thus, commercial activities certainly are not de- 
void of scientific implications, and scientific activities are not im- 
mune from commercial features. 

Moreover, there is the additional problem of allocating the most 
pertinent specialized uses to the more general functional activities. 
Thus, navigation is considered as a part of information, although it 
could also be treated along with other commercial activities. Or, 
meteorology might be analyzed under scientific rather than informa- 
tional activities. Communications might be treated under the head- 
ing of military activities rather than under commercial activities. It 
is clear that there is bound to be a considerable amount of overlap in 
any conceptual assumptions respecting primacy of use. The more im- 
portant fact is that space devices and man's increasing uses of outer 
space must be noted before it becomes profitable to inquire into the 
legality of their employment. 

1. Informational Activities 

Mankind's policies and ultimate successes require, as an absolute 
condition precedent, the acquisition, integration and dissemination of 
information. Man's adventure in space has supplied him with untold 
quantities of new data about earth and the heavens. This, probably 
more than any other single achievement, has been the hallmark of 
the space age. The societal implications of the newly acquired data 
and man's enlarging capacity to tap the information bank of the 
universe is only now beginning to be understood, 
a. Weather Meteorology and Forecasting 

Sophisticated space devices are now being used to supply basic 
weather facts. Since natural conditions which produce weather are 
world-wide in location, it is generally conceded that the cooperative 
efforts of all nations are required if weather facts are to be 
integrated. 65 It is only on this basis that effective weather fore- 
casting can be accomplished, and it is only through such procedures 



65 Wexler and Johnson, "Meteorological Satellites," in Odishaw, ed., The Chal- 
lenges of Space 7-22 (1962). 



90 

that the nations of the world can realize substantial economies in 
natural and human resources. 

The benefits of suitable meteorological studies and long-range 
weather forecasting affect all of mankind. 66 Illustrations abound. The 
destructive forces of nature can be considerably abated through ad- 
vance information on hurricanes, typhoons, and even routine storms. 
Life on the oceans and on land will be rendered more secure. The 
displacement of persons from storm centered areas, the relocation of 
persons in the path of excessive tides and floods, and preplanning for 
periods of extreme cold, snow, and ice are ready examples. 

Substantial benefits reach almost all of the economic areas known 
to man. 67 Manufacturers can arrange for delivery of raw materials 
before oceans, lakes, and rivers become of limited utility. Fishermen 
can avoid treacherous conditions. Farmers can more precisely and 
beneficially plant and harvest their crops. Tourists can better enjoy 
their holidays. Travel can be undertaken under safer conditions. No 
end of benefits can be depicted. Experts now suggest that weather 
control is a strong probability for the future. 68 The implications of a 
challenge such as this portend much for the future welfare and 
safety of mankind. 

The United States has long maintained a policy of cooperation 
with other states in the collection and distribution of weather data. 
An authoritative exposition of this purpose took place on December 
3, 1962, when Senator Albert Gore addressed the United Nations 
First Committee. He stated that world interdependence called for 
early cooperation in the development of a "truly universal system of 
weather reporting and forecasting * * * using satellites in outer 
space." 69 He noted that the "need for international agreements 
and international action is pressing in upon us." 70 He supported 
technical and financial assistance through the United Nations to 
member States in order that they might "supplement their resources 

66 Kaplan, "The Sun and the Earth," in Ramo, ed., Peacetime Uses of Outer 
Space 140-152. See generally, "National Meteorological Satellite Program," 
Report of the Committee on Science and Astronautics, U.S. House of Represent- 
atives, 87th Cong. 1st Sess., House Report No. 1281 (1961) ; "Meteorological 
Satellites," Staff Report, Committee on Aeronautical and Space Sciences, Unit- 
ed States Senate, 87th Cong., 2nd Sess., (1962). 

07 Michael, "Peaceful Uses," in Bloomfield, ed., Outer Space Prospects for Man 
and Society, 42-48 (1962). 

cs Neiburger, "Utilization of Space Vehicles for Weather Prediction and Con- 
trol," in Ramo, ed., Peacetime Uses of Outer Space, 154-173 ; Ball, "Shaping the 
Law of Weather Control," 58 Yale Law Journal 213-244 (1949). 

69 U.N. Doc. A/C.1/PV.1289, at 22. 

™ Ibid. 



91 

for strengthening their networks of meteorological observation." 71 
Independently of the United Nations, the United States has donated 
much equipment and scientific know-how to assist many nations in 
the development of more sophisticated meteorological programs. 

In line with the position urged by the United States, the General 
Assembly in Resolution 1802 (XVII) on December 19, 1962, invited 
"United Nations agencies concerned with the granting of technical 
and financial assistance, in consultation with the World Meteorologi- 
cal Organization (WMO), to give sympathetic consideration to re- 
quests from Member States for technical and financial assistance to 
supplement their own resources for these activities, including the im- 
provement of meteorological networks." 72 In the same resolution, 
and at the instance of the United States, the United Nations recom- 
mended that the World Meteorological Organization "in consulta- 
tion with other United Nations agencies and governmental and non- 
governmental organizations, should develop in greater detail its plan 
for an expanded program to strengthen meteorological services and 
research, placing particular emphasis on the use of meteorological 
satellites and on the expansion of training and educational oppor- 
tunities in these fields." 73 

The United States has acquired weather data through the employ- 
ment of two types of artificial satellites, namely, Tiros and Nimbus, 
and also has used sounding rockets. The United States, in addition to 
cooperating to this end with the United Nations and with WMO, has 
entered into a number of bilateral arrangements with other coun- 
tries. The most notable of the latter has been the Dryden-Blagonra- 
vov agreement arrived at in June of 1962, and officially published on 
December 5, 1962. 74 

At the time of this writing, the United States had orbited success- 
fully eight satellites of the Tiros family. The first was launched on 
April 1, 1960, and the last was placed in orbit on May 5, 1963. Tiros 
I, II, III and V are no longer active, although they remain in orbit. 



7 i Ibid., 31. 

72 A/RES/1802 (XVII) 4, Annex 3, infra, pp. 446-450. 

73 Ibid., 4. 

74 See, infra, pp. 482-488. Further discussions between these two negotiators 
led to the announcement on March 20, 1963, in Rome, that both the United 
States and the Soviet Union would coordinate national launchings of weather 
satellites. As a result of cooperative planning efforts, the two countries will 
launch weather satellites on different orbits. Photographs will be made of cloud 
and weather conditions, and pursuant to the agreement data of certain types 
and characteristics will be exchanged. Such data will also be made available to 
interested users. 



92 

The others are actively in orbit. The perigees range from 367 to 474 
statute miles, with the mean perigee being 419 statute miles. The 
apogees range from 401 to 597 statute miles, with the mean apogee 
being 499 statute miles. The time for the Tiros satellite to orbit the 
earth has ranged from a minimum of 97.4 minutes to a maximum of 
100.5 minutes. 75 

The importance of weather satellites is seen in the fact that 
conventional meteorological devices are able to provide weather infor- 
mation for less than one-fifth of the earth's surface. With an ade- 
quate number of satellites in simultaneous operation, it would be pos- 
sible to obtain integrated data on the entire world. The Tiros has 
been equipped with different kinds of cameras, including TV cam- 
eras. Well over 200,000 pictures taken by Tiros have been trans- 
mitted to the earth. These have been of clouds, sea ice, and compa- 
rable meteorological objects. The satellite has been equipped with 
radiation tape recorders, and infrared horizon scanners, and has pro- 
vided information on heat radiation from the earth and its atmos- 
phere. Launches have been scheduled so that accurate data might be 
supplied during hurricane and typhoon seasons. 76 

With the advent of high operational efficiency on the part of the 
more sophisticated Nimbus, it is planned to phase out the Tiros oper- 
ation. The optimum program now contemplated is to provide 
24-hour surveillance of the earth's cloud cover. This is not now being 
achieved because of the limited number of meteorological satellites in 
operation and the fact that they supply no data during the night- 
time. It has been estimated that Tiros sees only about twenty per- 
cent of the earth each day. 

As a result of satellite capabilities, a new concept of "space 
weather" has come into being. In the magnetosphere, which includes 
the areas where the Van Allen Eadiation Belts are located, there are 
situated many electrons and protons — minute building blocks of 
matter — which are influenced by magnetic fields. The particle popu- 
lation and energies so situated create space weather. In order to meas- 
ure these factors as affecting man's daily life and his future explo- 
ration of space, the Explorer 14 was launched on October 2, 1962. 
The satellite, weighing 89 pounds, has a perigee of 174/280 statute 
miles, an apogee of 61,190/61,106 statute miles, an inclination of 
32.9/33.6 degrees, and at the time of this writing was in active 
orbit. 77 



75 Data extracted from 2 STL Space Log, 12-25 (December 1962) ; 23 Facts on 
File 226 (1963) ; 4 STL Space Log 26-27 (Summer 1964). 

76 A\4£A Seventh Semiannual Report to Congress 57-59 (1963). 
77 NASA News Release No. 62-210, October 5, 1962. 









93 

It is expected that the Nimbus meteorological satellite will become 
operational in 1963 or in 1964. It has been designed to point toward 
the earth at all times while in orbit. Since it will possess a near polar 
orbit, it will repeat coverage of equatorial areas approximately every 
twelve hours, or every seventh orbit. In this way there will be read- 
ings at least twice each day from a given area, and this will be 
reported by television cameras during hours of daylight and by in- 
frared sensors during both day and night. 78 The prospects for this 
operation, plus the cooperative attitude of other nations in this area, 
suggest the rather early arrival of an excellent worldwide weather 
forecasting system. 

b. Geodetic and Navigational Aids 

The successful orbiting of the Transit 79 and Anna type navigation- 
al and geodetic satellites offers ample evidence of the utility of such 
devices for peaceful, including military, purposes. The prospects for 
hybrid uses of satellites is illustrated nowhere more clearly than 
here. A leading spokesman for the United States Navy has described 
the navigation satellite program as "primarily a nonmilitary effort 
* * *" 80 and one in which the United States and the Soviet Union 
would benefit through cooperation. An American writer, employed 
by the Bureau of the Budget, has suggested that the military interest 
is "predominant enough to warrant assignment * * *" 81 of the devel- 
opment and operation of navigational satellites to the U. S. Navy, 
with the hope that the product would be of benefit to civilian and 
military users. 

The navigational satellite will be useful to aerial, space, and ship- 
board navigation. For example, "Sailors will be able to make use of 
any one of the navigation satellites to place themselves accurately at 
any spot on earth, land or sea, day or night, regardless of solar 
storms, static, or foul weather." 82 According to Berkner, "Geodetic 
satellites * * * will provide mapping of the earth that is accurate to 



78 Supra note 76 at 59. 

79 Supra, pp. 59, 62. 

80 Vice Admiral John T. Hay ward, "Space Technology for World Navigation," 
in Ramo, ed., Peaceful Uses of Outer Space 83. 

81 Shapley, "United States Space Program," in Odishaw, ed., supra, note 65 at 
168. Compare Waggoner, "Department of Defense Space Program," ibid., 199, 
who considers Transit to be in support of specific military missions, and will 
"furnish necessary information for ships to determine their positions." 

82 Bloomfield, The Peaceful Uses of Space 15 (1962). For a contrary assess- 
ment see Michael, "Peaceful Uses," in Bloomfield, ed., supra note 67 at 48-49. 



94 

perhaps 50 feet. We can then test such ideas as continental drift 
without waiting a millenium." S3 

Through the use of the navigational satellite, Transit, it is possible 
to prove the feasibility of an all-weather, world-wide navigational 
system. Many procedures may be employed to exploit with much ac- 
curacy signals received from such satellites. The size and shape of 
the earth ma} T be accurately ascertained. The geodetic satellite pro- 
gram, Anna, also permits the precise determination of distances and 
positions on earth. With the orbiting of Anna IB on October 31, 
1962, assurance was provided that the Transit objective of measuring 
the shape of the earth would be continued. Anna IB, weighing 350 
pounds, has a perigee of 671/673 statute miles, apogee of 728/731 
statute miles, and an inclination of 50.5/50.1 degrees. It was in active 
orbit at the time of this writing. Both Transit and Anna have em- 
ployed relatively low orbits and have permitted the employment of a 
^range-only" navigational process (as opposed to the "angle-only"' 
process), whereby a sequence of accurately timed pulses are meas- 
ured. With the "range-only" process, known as a "doppler system,"' 
distances are determined by measuring the rate of change of range in 
the measured pulses. The "angle-only" system can also employ satel- 
lites, but requires orbits to be at a much higher elevation. 

Success in geodetical measurements is important not only for the 
identification of locations on the surface of the earth. Such measure- 
ments have a direct relationship to the tracking of all known space- 
craft, including the making of valuable predictions as to orbital 
paths employed by space vehicles. 

There is a relationship, in this practical sense, between geodesy 
and studies currently being carried on relating to the earth's mag- 
netic field. While no cooperative efforts have been initiated between 
the United States and the Soviet Union so far as mutual studies of 
navigation and geodesy are concerned, there is an active program of 
cooperation in the measurement of the earth's magnetic field. Thus, 
the 1962 Diyden-Blagonravov agreement provided for cooperation in 
the "compilation of a map of the magnetic field of the earth with the 
aid of artificial earth satellites." 84 The agreement also called for cer- 
tain implementing action including the coordinated launching of two 
magnetometer equipped earth satellites. One satellite was to be 
launched by the United States; the second by the Soviet Union. 



S3 Berkner, "Space Research — A Permanent Peacetime Activity," in Ramo, 
ed., supra note 80 at 6. 

("NASA Xcws Release Xo. 62-257, 5; U.X. Doe. A/C.l/880. Annex 22, infra, 
pp. 482-488. 



95 

Each was to be launched on "mutually agreed orbits." 85 Each 
country has undertaken to continue national programs for magnetic 
measurements in space and to exchange the data processed from such 
magnetic measurements. Following the launching of such satellites, it 
was contemplated that there would be a "prompt exchange of stand- 
ard magnetograms from earth observatories, and * * * [arrange- 
ments insuring] that these magnetograms contain all the data re- 
quired for their use for analyzing the data acquired by satellites." 86 
The 1962 decision was further implemented by the subsequent Dry- 
den-Blagonravov agreement at Eome, March 20, 1963. 87 
c. Observational Facilities 

The ongoing perfection of the scientific and technological capabil- 
ities of observation type satellites has placed significant stress on 
the political-legal problems of outer space. These developments have 
a decided impact upon previously enunciated preferences for an 
"open" as opposed to a "closed" society. The policy of the United 
States was summarized by Senator Gore before the United Nations 
in 1962, when he pointed out that "science has decreed that we are to 
live in an increasingly open world, like it or not, and openness, in the 
view of my Government, can only serve the cause of peace." 88 Obser- 
vation satellites, in addition to improving navigational and weather 
information, serve such constructive purposes as measuring solar and 
stellar radiation, analysis of the temperature and surface conditions 
on other planets, solar winds radiating from the sun, magnetic fields, 
sunspot activities, geomagnetic storms, interplanetary magnetic 
storms, radiation belts, and have, in addition to scientific capabilities, 
both military and commercial applications. Thus, space vehicles of 
this category are able to make observations of conditions in space; 
they are also able to observe conditions on the earth's surface and in 
the superjacent airspace. From their location in space they can look 
outward, downward, and toward all immediately proximate areas. 

A great variety of satellites have been employed for specialized 
observational missions. In addition to the United States observation- 
al satellites Explorer and Discoverer, 89 there have been a number of 
others, including Lofti, Injun, Eanger, Mariner, Alouette, 90 TES 1, 
Midas, Samos, and an unmanned maneuverable inspection satellite, 



85 lb id. 

86 Ibid., 6 ; New York Times, Western Edition, March 21, 1963. 

87 Christian Science Monitor, March 21, 1963. 

88 U.N. Doc. A/C.1/PV.1289 14-15. 

89 Supra, p. 58-59, 61-63. 

90 Supra, p. 78. 



96 

commonl} 7 referred to as Saint. 91 The Soviets apparently have relied 
on their Mars and Cosmos type satellites, and possibly others, for 
comparable observational missions. 

At the close of 1963 the United States had launched nineteen Ex- 
plorer type satellites. These have displayed the capability of achiev- 
ing a highly elliptical orbit, with perigees generally under 200 statute 
miles but with apogees on three of them reaching such heights as 
10,917, 47,800, and 61,190 statute miles. They have demonstrated a 
facility to remain in orbit for extended periods, although one re- 
mained in orbit for only three days. 

The Explorer satellite, which has been managed by NASA, has 
been used in connection with general scientific investigations in 
space. Its major focus has been on geophysical and astronomical in- 
quiry, and this type of satellite has furnished much of the current 
data on the atmosphere. 92 Recent Explorer launches have continued 
the general program. Thus, Explorer 14 has monitored "trapped cor- 
puscular radiation, solar particles, cosmic radiation and the solar 
winds, and * * * [has correlated] particle phenomena with magnetic 
field observations." 93 Explorer 15 studied the location, composition 
and decay rate of the artificial radiation belt produced by the high 
altitude nuclear explosion conducted over the Pacific Ocean on July 
9, 1962. 94 Explorer 16 engaged in five micrometeorite experiments. 
The purpose of Explorer IT was to measure the density, composition, 
pressure, and temperature of the earth's rarified atmosphere. Ex- 
plorer 18*s mission included scientific studies and measurements of 
the radiation hazards from solar flares that astronauts would face in 
travels between the earth and the moon. 

The Discoverer satellite, which has been managed by the United 
States Air Force, has been reportedly launched successfully nine 
times between July 7, 1961, and February 27, 1962. Details on subse- 
quent launches, if any, have not been made public. 95 This satellite has 
been the most frequently used of all United States satellites, with the 
launch of February 27, 1962, being the thirty-eighth launch in the 
series. These have displayed the capability of maintaining relatively 
low perigees and apogees, with the perigees and apogees of those 



91 Waggoner, supra note 81, at 200. 

92 Supra note 72, at 45-49. 

93 2 STL Space Log, 30 (December 1962). Compare "The Solar Wind," 3 STL 
Space Log, 32 (March 1963). 

94 2 STL Space Log, 31 (December 1962). 

95 3 STL Space Log, 23 (March 1963). Prior to February 28, 1962, 38 launches 
of this satellite had been attempted with 26 vehicles orbited and 23 capsule 
recoveries attempted. Twelve attempts were successful. 



97 

launched between July 7, 1961, and February 27, 1962, being about 
150 statute miles and 300 statute miles respectively. A unique quality 
of the satellite is that it is equipped to return to the earth's surface 
on command after orbital periods ranging from eleven to 151 days. 
The Air Force has demonstrated good success in capturing them in 
the air while descending or from the water after descent. 

The Discoverer satellite program has been "directed toward devel- 
oping advanced space vehicles and testing subsystems for guidance, 
control, stabilization, and the recovery of the capsule." 96 Discoverer 
36, for example, tested space vehicle components. It also conducted 
experiments in radio propagation, radiation effects, and tested in- 
strumentation for nuclear explosion detection. 97 It has served as the 
vehicle whereby scientific experiments have been conducted initially, 
with the expectation that perfected equipment would be employed on 
more sophisticated models. As a research program, it has provided 
data on radiation and biomedicine, as well as reliable hardware, tech- 
niques, and procedures for the operation and control of space 
systems. 98 

The United States has launched only one of the Lofti type satel- 
lites. It was placed in orbit on February 21, 1961, and reentered on 
March 30, 1961. Its perigee was 117 statute miles and its apogee was 
511 statute miles. Its inclination was 28.4 degrees. Its short life re- 
sulted from the failure of the second stage booster to separate from 
the satellites, and since the several satellites employed in the com- 
bined launch weighed 250 pounds, the low perigee was unable to 
sustain the attendant weight. Lofti itself was a dual purpose satel- 
lite. Having an observational objective, it investigated ionospheric 
effects on VLF radio wave propagation. 99 As a communications satel- 
lite, it investigated the space capabilities of low frequency 
broadcasting. 100 The experiment disclosed the possibility of 
using "transionospheric VLF radio waves emanating from ground 
stations as navigational aids to manned or unmanned space vehicles; 
or perhaps, as a means of communicating with submerged subma- 
rines through the use of satellites." 101 



96 Department of Defense, Annual Report for Fiscal Year 1961, 20 (1962). 

97 2 STL Space Log 25 (June 1962) . 

98 Supra note 96 at 332. 

99 3 STL Space Log 15 (March 1963) . 

100 Supra note 96 at 21. The experiment proved that "very low frequency 
(VLF) radio energy can penetrate the ionosphere at a low angle of incidence." 
210, 263. 

101 Ibid., 263. 



98 

The United States has successfully orbited two Injun type satel- 
lites. The first was placed in orbit on June 29, 1961, and the second 
(known as Injun 3) on December 12, 1962. Injun 1 has a perigee of 
534/546 statute miles and an apogee of 634/622 statute miles, with an 
inclination of 67/66.8 degrees. Injun 3 has a perigee of 153 statute 
miles and an apogee of 1724 statute miles. Both were in active orbit 
at the time of this writing. 

The United States Navy has been responsible for this program. 
Data of a general scientific import has been acquired by the Injun 
satellites. Injun 1 was designed to provide data on the Van Allen 
radiation belt and the origin of the aurora. Measurements were 
achieved from above the ionosphere. 102 Injun 3 weighed 114 pounds 
and was equipped with particle detectors and photometers. 

The Ranger type satellite has demonstrated versatility in both 
planetary and lunar explorations, and has contributed measurably to 
scientific investigations in space. Rangers 1 and 2, on orbital paths 
not intended to reach the moon, had perigees of 105 and 98 statute 
miles respectively, and apogees of 313 and 147 statute miles. Their 
inclinations were 32.9 degrees and 33.3 degrees. Ranger 1 was in or- 
bit seven days and Ranger 2 for one day. 

Ranger 3 and Ranger 4 failed to complete their missions, and pres- 
ently are on silent lunar orbits. Ranger 5, launched on October 19, 
1962, is presently in heliocentric orbit. 

XASA was responsible for this program, and has indicated that 
benefits have been realized from all of the five launches. The general 
purpose has been to obtain "(1) scientific data on the characteristics 
of the moon, the planets, the sun, and the environment of space, and 
(2) engineering data that will advance spacecraft technology." 103 
Rangers 3 and 4 demonstrated the accuracy of the spacecraft, and 
provided data for use in making hard landings on the moon. Ranger 
5 was equipped with a seismometer and radio transmitter to broad- 
cast data from the moon's interior. It also contained a camera system 
designed to take at least 100 pictures during the lunar approach with 
the expectation that there would be a very substantial improvement 
in detail when compared with pictures taken by earth situated 
observatories. 104 The launches in 1963 and 1964 were designed 
to provide radiation data and to take television pictures of the 



102 Ibid., 21, 210, 245. 

103 NASA Seventh Semiannual Report to Congress 50 (1963). 

10* NASA Sixth Semiannual Report to Congress 66 (1962) ; NASA News Re- 
lease No. 62-213, October 14, 1962. 



99 

moon from a position 800 miles above the earth and terminating 
with impact on the moon, thus facilitating manned lunar landings. 

Mariner 2, also launched by NASA, left the United States on Au- 
gust 26, 1962, and arrived at its destination at about 3:00 P.M. on 
December 14, 1962. In passing by Venus at a distance of approxi- 
mately 21,648 miles, it climaxed a journey of 180.2 million miles over 
109 and one-half days. This spectacular success was hailed as one of 
the most impressive scientific and technological achievements of all 
time. The experiment permitted Americans to obtain information 
from the vicinity of another planet for the first time in man's long 
history. As a scientific investigation of space, it provided substantial 
evidence of American preeminence in space technology. 

The launch was designed to accomplish the following objectives: 
scan the planet's surface, provide electromagnetic data on the plan- 
et's temperature and atmosphere, ascertain the strength and direction 
of the magnetic fields in interplanetary space and those emanating 
from the planet, discover the qualities of lower energy charged par- 
ticles in space and near Venus, to measure the energies, directions, 
and other characteristics of solar and galactic cosmic rays as well as 
other energy particles trapped near the planet, and to ascertain the 
size, speed, and direction of such particular matter as cosmic dust in 
space. 105 NASA's numerous reports illustrate the significance of the 
successes achieved. 106 Additionally, the two-way Doppler tracking of 
Mariner 2 during the flight to and beyond Venus has provided infor- 
mation which will contribute to the refining of physical constants 
necessary to an understanding of the solar system and the Earth. 107 •- 

Reference has previously been made to the fact of the cooperative 
launches of Alouette and Ariel. 108 Both were provided launching sup- 
port by NASA. The former was designed to determine whether ion- 
osphere electron density remained the same during changes in lati- 
tude and time of day, to measure radio noise in outer space and in 
the ionosphere, and to observe primary cosmic ray particles. 109 The 
latter had for its purpose the collection and transmission of data "on 



105 NA/SfA Seventh Semiannual Report to Congress 55 (1963). 

106 Mariner radiation experiments, NASA News Release No. 62-211, December 
28, 1962; Mariner Magnetometer experiment, ibid., No. 62-270, December 26, 
1962 ; Solar wind, ibid., No. 62-273, December 28, 1962 ; Microwave and infrared 
radiometer results, ibid., No. 63-36-1, February 26, 1963 ; and, Fields and par- 
ticles experiments, ibid., No. 63-36-2, February 26, 1963. 

107 Ibid., No. 62-272, December 28, 1962 ; ibid., No. 63-36-4, February 26, 1963. 

108 Supra, p. 78. 

109 2 STL Space Log 28 (December 1962). 



100 

cosmic rays, radiation intensities in the Van Allen belt, and solar 
phenomena." 110 

The smallest satellite yet to go into orbit was launched by the 
United States Air Force at an undisclosed date within 90 days prior 
to November 13, 1962. At the time of this writing it was still in orbit. 
It has been referred to as TRS because it is a tetrahedral research 
satellite. It weighs 1.47 pounds and measures six and one-half inches 
on a side. Only one has been reported to have been launched, and the 
perigee, apogee, and inclination have not been made public. It has 
been reported that it has provided data on changes in the Earth's 
radiation belt. Despite its small size, it has been readily tracked by 
United States equipment, and has supplied "up to eight minutes of 
data on each favorable pass." m 

NASA is presently engaged in perfecting the Voyager space ve- 
hicle, which, like the more advanced Mariner, will be equipped to 
orbit Mars and to land heavy capsules. 112 It is planned that this type 
of craft will engage in lunar and planetary investigations. 

NASA continues to manifest a substantial sounding rocket pro- 
gram for investigating geophysical and astronomical phenomenon. 
Rising from 50 to several hundred miles, such rockets permit brief 
studies of temperature gradients, variations in the qualities of the 
ionosphere, and "behavior of a mass of water released at an altitude 
of 65 miles." 113 

In addition to the foregoing programs, the United States Air 
Force has been identified with three satellite programs known as 
Midas, Samos, and Saint. All have the same general purpose, namely, 
to provide a satellite-borne warning system as a part of the 
over-all defense position of the United States. According to Wag- 
goner, the American development projects "having specific military 
missions, can be subdivided into three areas: (1) Information-gath- 
ering satellites such as the military warning and surveillance types 
(Samos, Midas), (2) inspection satellites (Saint rendezvous and Vela 
Hotel nuclear detection satellites), (3) support satellites (Transit 



110 NASA Seventh Semiannual Report to Congress 47 (1063). 

111 2 STL Space Log, op cit., 45; 3 STL Space Log 30 (March 1963). Sputnik 7 
weighing 14,292 pounds is the heaviest satellite to have been launched by the 
Soviets. The United States launched Saturn SA-5 on January 29, 1964 and 
Saturn SA-6 on May 28, 1964. Each weighed 37,300 pounds. 4 SPT Space Log 
34-36 (Summer 1964). 

112 NASA Seventh Semiannual Report to Congress 55 (1963). 

113 Ibid., 49. 



101 

navigation and Advent communications satellites and the West Ford 
communications experiment) ." 114 

Midas 3 was the first successful Midas (Missile Defense Alarm 
System) launch. It went into orbit on July 12, 1961, at a perigee of 
1850/2078 statute miles and with an apogee of 1850/2203 statute 
miles. It was launched at an inclination of 91.1/91.2 degrees. Midas 4 
was launched on October 21, 1961, with a perigee of /2175 statute 
miles, an apogee of /2330 statute miles, and at an inclination of /95.9 
degrees. Both were reported to be in orbit at the time of this writing. 
According to the Secretary of Defense, the Midas was considered in 
1961 to be an air defense weapon. He stated that it "will provide 
about 30 minutes of warning against ballistic missile attack when it 
becomes operational. It uses infrared scanning techniques to detect 
ballistic missiles during their boost phase." 115 

Samos 2 was launched successfully on January 31, 1961. It went 
into orbit with a perigee of 300/287 statute miles, an apogee of 
350/344 statute miles, and at an inclination of 97/97.4 degrees. It has 
been reported that Samos 2 has "returned useful meteorite impact 
data," 116 and that it is an "observation satellite facility." 117 The 
Midas and Samos, as information-gathering and observational satel- 
lites "are being developed to permit the earliest possible detection of 
a missile attack on the United States. When Midas is developed and 
in operation, infrared sensors located in several of these satellites 
should be able to detect the heat from exhaust flames during a 
launch occurring anywhere in the world." 118 

Not a great deal is known about the Saint type of satellite. Its 
objective has been stated as "the development of an unmanned ma- 
neuverable inspection satellite." 119 In order to be effective in the ob- 
servation and identification of unidentified space devices, any such 
satellite must be equipped with nondestructive inspection sensors, 
orbital control equipment, radar and television procedures, and an 
effective satellite-to-ground communications system. 

Vela Hotel, also, has not been publicized broadly. It is intended to 
provide long-range protection, and its "objective is the achievement 

114 Waggoner, supra note 81 at 199-200 ; see pp. 59, 62 supra regarding Transit. 

115 Department of Defense, Annual Report for Fiscal Year 1961, 330 (1962) ; 1 
STL Space Log 38-39 (December 1961) ; compare, Brennan, "Arms and Arms 
Control in Outer Space," in Bloomfield, ed., supra note 66 at 134-138. 

116 3 STL Space Log 14 (March 1963) . 

117 Department of Defense, Annual Report for Fiscal Year 1961, 323 (1962). 
us Waggoner, supra note 81, at 200. 

119 Ibid. 200. 



102 

of a satellite system to detect nuclear explosions in space." 12 ° On the 
basis of the above evidence one can reasonably conclude that Midas, 
Samos, Saint, and Vela Hotel are designed to permit a State to per- 
fect its defensive military posture. Defensive use of space vehicles, 
like defensive uses of any military equipment, it may be concluded, 
accord with the principles and rules of international law. 121 

The Soviet Union has also successfully launched a number of in- 
formation gathering or observational satellites. Among those which 
have been reported to the United Nations are those in the Mars and 
in the Cosmos categories. 

On November 1, 1962, the Soviet Union placed the Mars 1 in helio- 
centric orbit with the hope that in May 1963, it would reach the plan- 
et Mars at a point some 150 million miles from earth. The Soviet 
government has described the purpose of the orbit to consist in "Pro- 
longed exploration of outer space during flight to the planet Mars; 
establishment of inter-planetary radio communications; photograph- 
ing of the planet Mars and subsequent radio-transmission to Earth 
of the photographs of the surface of Mars thus obtained." 122 Mars 1 
was described by the Soviets as an automatic station carried by a 
space rocket. An American appraisal of the Soviet purposes has in- 
cluded as objectives the analysis of meteoric impacts and interplane- 
tary plasma and gravity measurements. 123 These goals are not dissim- 
ilar from those achieved by Mariner 2 in the Venus probe. 

Between March 16, 1962, and October 20, 1962, the Soviet Union 
successfully launched eleven artificial earth satellites into outer 
space. Their perigees varied from a minimum of 115 statute miles to 
187 statute miles and their apogees varied from a minimum of 206 
statute miles to a maximum of 908 statute miles. The inclinations 
followed two patterns, one in the vicinity of 49 degrees and the other 
precisely at 65 degrees. Cosmos 4 remained in orbit for only three 
days, while Cosmos 1 was in orbit for 270 days. Down to August 28, 
1964, the Soviets had reported to the United Nations the launching 
of forty-four satellites of the Cosmos class. Following Soviet prac- 
tice, all were launched by military agencies. 

According to the Soviet report to the United Nations, the latest 
Cosmos satellites were launched to engage in an "investigation of the 
upper atmosphere and outer space." 124 It is general American opin- 

120 Ibid. 201. 

121 See pp. 326-331 infra for a detailed analysis of this conclusion. 

122 U.N. Doc. A/AC.105/INF.24. 

1232 STL Space Log 50 (December 1962) ; Orlen, "Space Programs of Other 
Nations," in Odishaw, ed., supra note 64 at 205-213. 
124 U.N. Doc. supra note 122 at 2. 



103 

ion that the Cosmos research program constitutes a pattern of in- 
quiry designed to provide data on the "energy composition of the 
Van Allen radiation belt, charged particles in the ionosphere, cor- 
puscular flow and low-energy particles, cosmic rays, the earth's mag- 
netic fields, solar radiation, micrometeorites, formation and distribu- 
tion of the earth's cloud cover." 125 If this is true, these efforts would 
fall under the general heading of scientific investigations in space 
with emphasis on geophysics, astronomy, and planetary investiga- 
tions. If comparable to American investigations, those of the Soviets 
would pursue reasonable peaceful purposes. 

d. Communications Media 

The prospects for a highly efficient world communications system, 
made possible by the use of high-orbiting satellites, are justly 
regarded as a good omen for mankind's slowly maturing spirit of 
cooperation. Best of all, the day does not seem far distant when such 
benefits will be within the reach of all peoples and all nations. The 
United States has long been preeminent in this field. 

In the United States the development of communications satellite 
systems have been activities of governmental and private 
organizations. 126 Within the government the major program 
managers have been NASA and the Army. NASA has been primar- 
ily concerned with Echo, Relay, Syncom and Telstar. It has sup- 
ported private activities in connection with Echo, Relay, and Tel- 
star. The Army has been responsible for the development of Advent. 
The Defense Communications Agency has developed detailed plans 
to place in orbit during the first six months of 1966, a system of up 
to twenty-four communications satellites. 

Echo 1 was launched on August 12, 1960, with a perigee of 941/588 
statute miles and an apogee of 1052/1246 statute miles and an inclin- 
ation of 47.2/47.3 degrees. Although weighing but 135 pounds, it was 
some 100 feet in diameter in order to serve its purpose as a passive 
satellite. Still remaining in orbit, it has lost much of its spherical 
shape with the result that it now possesses a widely fluctuating orbit. 
It was actively employed in communications experiments as late as 
April, 1962, and during its productive lifetime was used as a reflect- 
ing relay for voice and TV transmissions within the United States 
and for voice signals between the United States and the United 
Kingdom. 

The success demonstrated by Echo 1 has led to plans for the orbit- 
ing of an improved Echo 2 during 1963. It has been designed to orbit 

125 2 STL Space Log 46 (December 1962). 

126 Supra, pp. 38-40, 80-88. 

791-405—66 8 



104 

at TOO miles above the earth, to have an inclination of 80 degrees, to 
remain in orbit for about 680 days, and will exceed Echo 1 in diam- 
eter by 35 feet and in weight by 365 pounds. Like its prototype, it 
will be employed for extended voice and TV transmissions. Pursuant 
to the Dryden-Blagonravov agreement in Rome on March 20, 1963, a 
consensus has been reached as to the type of instruments to be em- 
ployed on Echo 2. It was also mutually determined that the radio 
frequency to be employed would be 116 kilocycles. 127 

On January 25, 1964, NASA put Echo 2 into orbit. Weighing 547 
pounds it is a passive reflector communications satellite transmitting 
on 136.021 and 136.170 mc. Its perigee varied from 633 to 644 statute 
miles, while its apogee varied between 816 and 819 miles. Its inclina- 
tion in degrees from the equator was 81.5, and it circled the earth in 
about 108 minutes. 

Relay 1 was placed in an elliptical orbit on December 13, 1962, 
having a perigee of 819 statute miles and an apogee of 4612 statute 
miles, and an inclination of 52 degrees. It was designed to conduct 
telephone, television, radio, teletype, photo-facsimile, and data tests 
between points in the United States and others in England, France, 
Germany, Italy, and Brazil. Operational details were effected 
through the cooperation of the Bell Telephone Laboratories and an 
International Telephone and Telegraph Company facility. Unlike 
Echo, Relay 1 was an active repeater-type satellite. It proved able to 
receive and transmit wideband signals, demonstrated a capacity to 
maintain operational effectiveness despite damage from concentra- 
tions of radioactivity, and provided general experience for an even- 
tual operational communications system. 128 It was successful in per- 
forming all of its experiments and missions. 129 

Syncom 1 was launched successfully on February 13, 1963, but 
failed to maintain the designed synchronous altitude of 22,300 miles 
above the earth. It had been planned to maintain Syncom 1 in a 
twenty-four hour orbit at an inclination of thirty degrees so that the 
orbital period would very closely approximate the speed of the orbit- 
ing earth below. Had the satellite achieved its designed synchronous 
altitude, it would have served as an active repeater and would have 
provided narrow-band communications via two transponders. Syn- 
com 1 was a joint project of NASA and the Department of Defense. 

On July 26, 1963, NASA successfully launched Syncom II. It was 
initially placed in orbit 22,300 miles in space and by August 15, it 

127 New York Times, Western Edition, March 21, 1963. 

128 NASA Seventh Semiannual Report to Congress 64 (1963). 

™>NASA News Release No. 63-57 (March 22, 1963) ; ibid., No. 62-258 (De- 
cember 11, 1962). 



105 

had been delicately nudged into an on-station position above 55 de- 
grees west longitude, thereby moving it from an original position 
above the east coast of Africa to a permanent position over Brazil. 
In this position it appears to trace an elongated figure 8 along the 55 
degrees west meridian to points 33 degrees north and south of the 
equator. The figure 8 conformation is caused by the angle at which 
the satellite crosses the equator while in orbit. 

The communications capabilities of Syncom II are very extensive. 
While it does not transmit TV pictures as Telstar does, it does relay 
telephone conversations, radio broadcasts, teletype messages, and 
radiophotos. It operates within day and night reach of 90% of the 
free world's telephones, and in September, 1963, carried the voice por- 
tions of the addresses made at the General Assembly of the United 
Nations to countries located in Europe and Africa. 130 Future syn- 
chronous satellites are expected to be placed in equatorial orbit so that 
they will hover like an unmoving dot in the sky. 

The advantages of three Syncom type satellites orbiting at an alti- 
tude of 22,300 miles may be compared with twenty to twenty-five of 
the Echo 1 type satellites orbiting at an altitude of 1,000 miles. It 
has been stated that "World-wide multichannel all-weather television 
broadcasting from three fixed 24-hour-orbit satellites could reach all 
the villages and all the peoples equipped with low-cost television 
receivers." 131 Kappel has acknowledged the presence of impor- 
tant difficulties in the operation of 24-hour satellites, and after in- 
vestigation, the American Telephone and Telegraph Company pro- 
posed a system "employing a number of active satellites orbiting a 
few thousand miles in space." 132 This procedure is being counted on 
to provide the public with adequate telephone service by way of sat- 
ellites. 

The feasibility of the Syncom type communications satellite has 
been investigated in several countries. The United Kingdom in 
March, 1963, expressed a strong interest in mounting a civil-military 
satellite communications system before 1970. Like the American plan 
it would provide three stationary satellites at a height of 22,300 
miles. The British decision was in part based on the possibility that 



130 For an extensive symposium on "Worldwide Satellite Communications." 
see 1 Astronautics and Aerospace Engineering 23-78 (September 1963). Com- 
pare, NASA News Release No. 63-207, September 17, 1963. 

131 Libby, "Atomic Energy and Space," in Ramo, ed., supra note 80, at 195. 

132 Kappel, "Communications in the Space Age," in Ramo, ed., ibid., footnote, 
p. 52 ; compare Pierce, "Hazards of Communications Satellites," in Odishaw, ed., 
supra note 64, at 66-68, and Silk, "The Impact on the American Economy," in 
Bloomfield, ed., supra note 66, at 178-82. 



106 

satellites at the 8,000 mile range would encounter destructive radio- 
activity. It was in part based on the desire to offer commercial 
competition with other national systems. Additionally, the British 
have foreseen the need for a combined civil-military communications 
system. 133 

The substantial contributions being made by the Telstar program 
in the satellite communications field has already been discussed. 134 

The United States has been engaged since 1960, in developing "a 
military capability for high capacity, secure, and world-wide instan- 
taneous radio communication by using high-altitude hovering 
satellites." 135 Like the Syncom type satellite, Advent was de- 
signed to hover at 23,300 miles above the equator. Three such satel- 
lites are planned to relay information between surface stations, in- 
cluding mobile naval vessels, on ninety percent of the earth's 
surface. 136 The use of a naval mobile terminal illustrates the 
world-wide capabilities of such a system. Advent has been described 
as a support satellite, comparable to Transit with its concern for 
navigational situations. 137 The Air Force project, West Ford, in- 
cluded the launching of dipole reflectors as a communications experi- 
ment. 138 

The satellite and other space devices have become principal tools 
for the conducting of communications activities in outer space. It is 
submitted that their use to date has been both practical and reason- 
able. As such, it is possible to conclude that their use falls within the 
range of peaceful uses, and therefore conforms to the announced pol- 
icy of the United States. The next section will provide illustrations 
of additional uses, both at an operational and at more esoteric levels 
of discourse. 

2. Scientific Activities 

Science, as an international discipline, has shown slight regard for 
national boundaries. Scientists have not only given us the atomic- 
space age. They have also been largely instrumental to date in ob- 
taining international agreement for practical peaceful uses of outer 



133 Christian Science Monitor, March 28, 1963. 

134 Supra, pp. 10^-104. 

is5 Department of Defense, Annual Report for Fiscal Year 1961, 234 (1962). 

1 36 Hid., 160. 

137 Waggoner, "Department of Defense Space Program," supra note 76, at 200. 

138 See supra, pp. 101-102. 



107 

space. 139 They have also worked hard to bring man's social think- 
ing abreast of his space capabilities. 140 

a. General Research 

The space age is, more than any other single thing, a tribute to 
scientific and technological creativeness. The pyramiding effect of in- 
creased discovery has served to make the present period one of supe- 
rior scientific attainment. Space is providing an environment for 
scientific and technological research. The space competition between 
the United States and the Soviet Union has already demonstrated 
that highly significant research has been accomplished with respect 
to astronomy, astrophysics, biology, geophysics, and psychology, 
among others. Technological advancement has led to the perfection 
of such items as metals, lubricants, structures, plastics, and instru- 
ment design. 141 One important by-product of the augmented scientific 
and technological era has been the spin-off or incremental knowledge 
and know-how made available to consumer-based industries. 142 This 
has had a favorable economic impact on national economic bases. 

The rigorous individual preparation involved in proficient space 
research has, in its aggregate, contributed materially to the intellec- 
tual preeminence of nations and has thereby augmented positions of 
power. It is unquestionably true that the readiness of the nonspace 
powers to cooperate in scientific space activities is motivated at least 
in part by the national benefits, and possible advantages to be real- 
ized through the acquisition of scientific and technological data. 

b. Exploration and Experimentation 

Space science and technology have contributed to the easier accum- 
ulation of data from all the corners of the world. The highest prior- 
ity has been given by the two major space powers to the accumula- 
tion and dissemination of such data. Informal as well as formal 
efforts have developed to facilitate observational and reporting tech- 



139 Jenks after commenting on the success of international scientists in coop- 
erating on space programs, asks, "Why, then, cannot we as lawyers leave to the 
scientists the whole or major responsibility for the success of international 
cooperation in space?" "The International Control of Outer Space/' in Legal 
Problems of Space Exploration 739 (1961). 

140 Galloway, "The Community of Law and Science," First Colloquium 59-65 
(1959). 

141 Supra pp. 55-77. Compare, Michael, "Peaceful Uses," in Bloomfield, ed., 
supra note 66, at 55-59. 

142 Berkner, "Space Research — A Permanent Peace Time Activity," in Ranio, 
ed., supra note 80, at 7, 11. It undoubtedly has also enhanced the role of the 
scientist in political-legal decision making. 



108 

niques. This cooperation has been based on the very pragmatic fact 
that the careful analysis of all acquired evidence is a mandatory 
condition precedent to the full and effective use of the scientific proc- 
ess. The areas and procedures which have been most effectively ex- 
ploited have been discussed above. 143 

c. Protection against Disease and Forms of Contamination 
Space planners have been concerned with the twofold problem of 
preventing the spread of earth diseases into space and the possibility 
of the contamination of earth from outer space. Berkner has pointed 
to the latter situation. "While the danger seems very small of bring- 
ing back to earth an organism that would lead to fatal epidemics, or 
might even destroy our food or air, it is nevertheless finite." 144 He 
has called for adequate scientific inquiry to establish that such 
dangers are not real as a condition governing the return to earth of 
scientific space samples and space voyagers. The legal implications of 
such possible findings have been considered by Congressman Overton 
Brooks, who has served as chairman of the committee on Science and 
Astronautics of the House of Representatives. He has written : "The 
dangers of interplanetary contamination are far-reaching and not at 
all fanciful. They are certainly a proper subject for space law." 145 

The grave consequences resulting from man's contamination of 
outer space have been studied by American biologists. In discussing 
the possibility of infecting the planets with terrestrial forms of life, 
it has been suggested that it might be possible through the introduc- 
tion of microbial organisms to "occupy the entire planet in days or 
weeks. By the time a later probe was sent it would be too late to 
study the planet in its virgin condition, denying us an inestimable 
prize for the understanding of our own life and its origins." 146 Con- 
tamination of outer space might, it has been suggested, deny man the 
opportunity to engage in commercial exploitation of the planets. 
Further, there is the need to "face the conceivable moral problems 
raised by the thought of our contaminating an already inhabited 
planet." 147 In order to avoid such detrimental conditions as these 
it has been suggested that launching States must engage in a vigo- 
rous program of decontamination by means of gaseous fumigation. 148 

143 Supra, pp. 88-106. 

144 Berkner, supra note SO, at 13. 

145 Brooks, "The Place of Government in the Utilization of Space," in Ramo, 
ed., ibid., 209. 

146 Novick and Lederberg, "Challenges to Biology," in Odishaw, ed., supra 
note 64. at 95. 

147 Ibid. 
14 « Ibid. 



109 

In 1958 the international scientific community, through the Interna- 
tional Council of Scientific Unions (ICSU), established a special 
Committee on Contamination by Extraterrestrial Exploration 
(CETEX). This committee has come forward with "an international 
code governing the control of contamination of celestial bodies." 149 

3. Commercial Activities 

While the two major space powers continue to engage in an intense 
scientific competition — induced by the magnitude of the stakes in- 
volved — they will not overlook the fact that the challenges of and in 
space take many forms. Not the least have been, and will continue to 
be, the commercial implications of space science and technology. 

Such commercial implications are of two sorts. In the first place 
there continues to exist a hope that tangible space resources, as well 
as the use of space for transiting purposes, will have commercial 
value. Secondly, the cost of space research and practical applications 
incident thereto have produced a very substantial benefit to the econ- 
omy of nations. In the United States large and increasing sums have 
been expended by the national government to provide a substantial 
space capability. NASA's budget was 56.9 million dollars in fiscal 
year 1955, and was one billion, six hundred and seventy-one million 
for fiscal year 1962. For the same years the Department of Defense 
received, respectively, three million and one billion, one hundred and 
sixty-eight million dollars. The total expenditures in the United 
States for space activities in 1955 was 60 million dollars. By 1962 it 
had increased to three billion dollars, with the Atomic Energy Com- 
mission, the National Science Foundation, and the Weather Bureau 
sharing in appropriations. 150 

a. Resource Exploitation 

Space exploration has already resulted in great adventures for 
mankind, and hopes for the commercial exploitation of the newly 
usable environment take many forms. In the sense that outer space is 
an enormous laboratory many benefits have already been derived. 
Space exploration has provided not only data for man's scientific 
analysis of this previously forbidden part of the universe; there is 

149 Schwartz, "International Space Organizations," in Odishaw, ed., supra note 
64, at 250. CETEX made recommendations concerning nuclear contamination as 
well as bacterial pollution. Infra, pp. 312-318. 

150 Silk, "The Impact on the Economy," in Bloomfield, ed., supra note 66, at 
83. Appropriations for fiscal year 1963 for NASA reached 3.7 billion, with well 
over another billion being allocated to other departments and agencies engaged 
in space activities. President Kennedy in 1963 recommended a 1964 authoriza- 
tion for NASA of 5.7 billion dollars. 



110 

the present expectation that man will discover new elements in space, 
which, when returned to earth will serve the needs of mankind. 

Scientific probes so far conducted do not disclose the presence of 
earthlike elements in space possessing commercially exploitable qual- 
ities, and even assuming that rare minerals or substances are found 
upon the moon or planets — the problem of returning such materials 
to earth has yet to be demonstrated as feasible. Thus, for the time 
being, and perhaps for the very long future, the most valuable re- 
source being exploited in space is knowledge itself. 151 

b. Transportation 

Until the environmental conditions conducive to human habitation 
in space have been ascertained, it is premature to consider commercial 
travel via spacecraft. However, this does not hold true as respects the 
movement of persons and cargoes by means of missile-type rockets or 
X-20 type craft to distant parts of the earth. Practical estimates 
have been made concerning weights, costs, and fares. At hypersonic 
speeds, of less than the orbital speed of 18,000 miles per hour, Fan- 
euf has calculated that a passenger might expect a fare of $710 for a 
4,000 mile trip, $730 for 6,000 miles, $750 for 8,000 miles and $770 
for 10,000 miles. 152 When it has been demonstrated that there is a 
demand for such services, it is likely that a functional type interna- 
tional agency, possibly within the aegis of the United Nations, will 
be utilized for purposes of management and control. 

c. Weather Control 

The commercial exploitation of weather data is already a thriving 
business in many areas. This service includes not only weather fore- 
casting, but has extended to the inducement of rainfall. Enhanced 
knowledge of weather conditions has been one of the greatest contri- 
butions of the space age. Use of this knowledge will provide abun- 
dant benefits. 153 The future may hold opportunities for important 
controls, with great benefit or harm to mankind depending upon how 
t he forces of nature are employed. 

151 Teller, "Outer Space Travel— What Is and What Is Not Possible," in 
Ramo, ed., supra note 80, at 261. He states that because of the manufacture of 
synthetic diamonds there is no shortage on earth, and that it would be much 
too expensive to transport gold and uranium, even if found in a pure state. See 
McDougal, Lasswell, Vlassic and Smith "The Enjoyment and Acquisition of 
Resources in Outer Space," 111 University of Pennsylvania Law Review 634 
(1063) ; infra, pp. 263-277. 

152 Faneuf, "Application of Space Science to Earth Travel," Ramo, ed., supra 
note 80, at 96. 

158 First Report on the Advancement of Atmospheric Sciences and Their Ap- 
plication in the Light of Developments in Outer Space, World Meteorological 
Organization (1962) . Supra, pp. 17, 38-39, SO-93. 



Ill 

d. Communications Media 

It may be predicted that private and public enterprise will con- 
tinue to operate extensive communications satellite systems. With the 
proliferation of such efforts it may be expected that there will be 
extended efforts to regulate radio frequencies, orbital paths, assign- 
ment of operational priorities, control of launches, registration of 
operational details, provision for the recapture and return of equip- 
ment, and the development of rules on jurisdiction and liability. 1 ' 



L54 



4. Military Activities 

It is generally recognized that it is not possible to make sharp 
distinctions between military and nonmilitary space activities. Es- 
sentially military activities in this area are not restricted to defense 
establishments. In the United States, for example, scientific inquiry 
having military implications is engaged in by NASA, as well as by 
private organizations. By the same token, scientific investigations 
having little, if any, connection with direct military uses have been 
undertaken by the Department of Defense. 155 The close interrelation- 
ship of separate investigations has been evidenced by cooperation 
between these two and many other units of government. 

Remarkable unanimity exists on the part of commentators as to 
the fact of interdependence and interrelationship between nonmili- 
tary and military uses of space. This conclusion has been summa- 
rized as follows: "Virtually every activity in space has a possible 
military connotation ; military and nonmilitary uses are extraordinar- 
ily interdepartment." 156 In this respect, space devices, including satel- 
lites and missiles, add nothing to the total range of man's activi- 
ties, except to provide him with a new dimension in which to engage — 
if he will — in ancient and historic practices. The use of the atom 
has been compared with the use of outer space. The existence of 
atomic weapons, it has been pointed out, does not require military 
purposes. The same is equally true for naval vessels, aircraft, motor 

154 First Report by the International Telecommunication Union on Telecom- 
munication and the Peaceful Uses of Outer Space, International Telecommuni- 
cation Union (1962) ; infra, pp. 263-319. 

155 Shapley, "United States Space Program," in Odishaw, ed., supra note 64, at 
166-170 ; Waggoner, "Department of Defense Space Program," supra note 91, at 
195-197, 202-203 ; Department of Defense Annual Report for Fiscal Year 1961 
20-21 (1962). 

156 Lipson and Katzenbach, "The Law of Outer Space," in Legal Problems of 
Space Exploration 806 (1961). Compare "Report of the Committee on Law of 
Outer Space — Recommendations : 1959, American Bar Association : Section of 
International and Comparative Law," ibid., 575-576; Jessup and Taubenfeld, 
Controls for Outer Space 267-272 (1959) . 



112 

vehicles, and revolvers. The latter, it hardly needs saying, are used by 
criminals as well as policemen. Thus, just as science and technology 
are inherently neutral in a moral, political, and legal sense, so are 
the products which they have created. Their use may contribute as 
readily to the destruction of the world community as to its emanci- 
pation from war, death, famine and pestilence. 

Despite the fact of significant interrelationships between essen- 
tially nonmilitary and military uses of space vehicles, it is clear that 
ballistic missiles and rockets may have a primary military purpose. 
It has been proven that missiles and rockets are efficient military 
weapons. The specific utility of satellites as military weapons re- 
mains speculative, although there is no doubt that indirectly they 
contribute to an effective military potential and may, perhaps, 
achieve over a period of time, effectiveness as direct means of 
combat. 157 There is no doubt, however, that if satellites achieve 
the quality of direct military weapons that national policies will 
have to make provision for means to defend against such weapons in 
space. 158 Much of the present space effort is being directed to examine 
the feasibility of satellites as weapons and also anti-satellite counter- 
measures. 

In this connection on June 1, 1961, the Deputy Secretary of De- 
fense while appearing before the Senate Committee on Aeronautical 
and Space Sciences, discussed the interrelationship between military 
and nonmilitary uses of outer space. He stated that "It is important 
to recognize and understand that there are some space applications 
which are distinctly military; others which are of mutual interest 
for civilian as well as military use. Still other missions are, at pres- 
ent, primarily of civilian or scientific interest. However, these latter 
will provide fundamental knowledge which may provide a basis for 
military application at some future date. Similarly, out of military 
programs, technical data is produced which has civilian 
application." 159 

The United States, while engaged in leading world opinion in sup- 
port of the peaceful uses of outer space, has taken into account the 
prospect of security through deployment of nuclear weapons in 

lTj7 Whelan, "Goals of the U.S.S.R. in Space," in Soviet Space Programs, 48-50 
(1962). 

1 M Knorr, "On the International Implications of Outer Space," 12 World Poli- 
tic* ."70-575 (1960) ; compare Schelling, "The Military Use of Outer Space, 
with Particular Reference to Bombardment Satellites," in Goldsen, ed., Interna- 
tional Political Implications of Activities in Outer Space 36-48 (1960) ; Golo- 
vine. Conflict in Space 87-109 (1962). 

159 Quoted by Waggoner, supra note 81 at 195. 



11 



o 



space. Deputy Secretary of Defense Gilpatric made the following 
statement on September 5, 1962 : 

The United States believes that it is highly desirable for its 
own security and for the security of the world that the arms 
race should not be extended into outer space, and w r e are seeking 
in every feasible way to achieve that purpose. Today there is no 
doubt that either the United States or the Soviet Union could 
place thermonuclear weapons in orbit, but such an action is just 
not a rational military strategy for either side for the fore- 
seeable future. 

We have no program to place any weapons of mass destruc- 
tion into orbit. An arms race in space will not contribute to our 
security. I can think of no greater stimulus for a Soviet ther- 
monuclear arms effort in space than a United States commit- 
ment to such a program. This we will not do. 

At the same time that we are pursuing cooperative scientific 
efforts in space through the United Nations and otherwise, we 
will of course take such steps as are necessary to defend our- 
selves and our allies, if the Soviet Union forces us to do so. This 
is in accordance with the inalienable right of self-defense con- 
firmed in the United Nations Charter. 

We now have an active and extensive military space program, 
addressed to two objectives : 

First, as part of our overall defense effort, we have continuing 
programs to ensure that the United States will be able to cope 
with any military challenge in outer space. Our programs in this 
area are under constant review, and this review indicates that 
our present rate of effort is entirely adequate. 

Second, as a part of our national space program, w r e in the 
Defense Department, along with NASA, are actively exploring 
the potentialities of outer space as a useful part of our expand- 
ing universe. 160 
He then outlined United States efforts to enhance its leadership in 
such fields as communications, navigation, meteorology, mapping, 
and geodesy. From his remarks it is possible to conclude that in the 
formulation of American policy relating to the uses of outer space 
full account is being taken of the hybrid capabilities of missiles and 
satellites. 161 

President Kennedy in his message of March 28, 1961, dealing with 
the problem of national defense, asserted that American arms would 

1G0 Department of Defense Press Release, No. 1426-62, 3-4 (Sept. 5, 1962). 
161 Ibid., 4. 



114 

not be used to strike the first blow in any attack, and that American 
strategic arms and defenses must be adequate to deter any deliberate 
nuclear attack on the United States or her allies. 162 Ballistic missiles 
have steadily assumed a more significant role in the policy of strate- 
gic deterrence. 163 

It may be concluded that both ballistic missiles, directly, and satel- 
lites, indirectly, have military utility. This does not automatically 
exclude them from the category of peaceful uses, since defensive and 
deterrent capabilities serve the cause of peace. It is only when such 
devices are intentionally used for aggressive purposes that they lose 
their peaceful status. 164 

Barring an effective general and complete disarmament program 
between major nations, the possibility always remains that outer 
space will be used for direct military purposes. Certainly at the pres- 
ent time outer space is being used in ways which contribute to the 
defensive or security position of nation-states. The right of nation- 
states to defend their security is a fundamental tenet of international 
law. In commenting upon this right of nations, President Kennedy 
stated on November 20, 1962, while discussing the Soviet build-up in 
Cuba : "We, of course, keep to ourselves, under the United States 
Constitution, and under the laws of international law, the right to 
defend our security. On our own, if necessary — though we, as I say, 
hope to always move in concert with our allies, but on our own, if 
that situation was necessary to protect our survival or integrity or 
other vital interests." 1G5 

a. The Right of Self -Defense 

Brief reference will be made here to legal grounds supporting the 
employment of space devices for military, i.e., nonaggressive and 
beneficial, purposes. In view of the right of a nation-state to main- 
tain its existence, it may look to its defense in time of peace and it 



162 Department of Defense Annual Report for Fiscal Year 1961, 4 (1962). 

163 Ibid., 6. 

164 Supra pp. 41-44, 53. This is well understood in the Soviet Union. Whelan, 
supra note 157, at 50-59. Compare, ibid.. 300-306. 

165 Xew York Times, November 21, 1962. In 1914 Elihu Root described the 
''right of self-protection" as one "recognized by international law. The right is 
a necessary collary of independent sovereignty. It is well understood that the 
exercise of the right of self-protection may and frequently does extend in its 
effect beyond the limits of the territorial jurisdiction of the State exercising it. 
Each sovereign state has the right to protect itself by preventing a condition of 
affairs in which it will be too late to protect itself." "The Real Monroe Doc- 
trine."' 8 A.J.I.L. 432 (1914). Compare Cooper, "International Control of Outer 
Space — Some Preliminary Problems," Third Colloquium 23-24 (1961). 



115 

may employ permitted weapons in time of war. This is generally 
referred to as the right of self-defense or the right to engage in the 
defense of national security. That such right exists has never been 
challenged. Included within this larger right is the right to employ 
limited coercive force in time of peace. 

Under general customary international law a nation-state possesses 
the unquestioned right to defend itself against the aggressive con- 
duct of another state or states. This is an ancient and inherent right, 
and is a foundation upon which much of international law has been 
constructed. 

The national right of self-defense has also been provided for in 
Article 51 of the United Nations Charter. The governing provision 
reads: "Nothing in the present Charter shall impair the inherent 
right of individual or collective self-defense if an armed attack oc- 
curs against a Member of the United Nations, until the Security 
Council has taken the measures necessary to maintain international 
peace and security." This language reaffirms the fact that self- 
defense is an inherent right, refers to the fact that such defense may 
be individual or collective, and recites that an "armed attack" by an- 
other State or collection of States is the condition precedent for indi- 
vidual or collective self-defense. 

Two principal interpretations of the term "armed attack" are now 
found in the literature of international law. One is a literal, or re- 
strictive, construction of the language. The second is less literal and 
constitutes a more realistic and a more acceptable interpretation of 
the expression. The process of construing the Charter of the United 
Nations, like the historic experience in providing continuing life for 
the Constitution of the United States, offers much evidence of the 
need to relate legal concepts — particularly when contained in 
Charters and Constitutions, and thereby phrased in general language — 
to the ongoing realities of the social complex. 166 



lee Christol and Davis, "Maritime Quarantine : The Naval Interdiction of 
Offensive Weapons and Associated Materiel to Cuba, 1962," 57 A.J.I.L. 525 
(1963). Compare Chayes, "The Legal Case for U.S. Action on Cuba," 47 Depart- 
ment of State Bulletin 763 (1962), and "Law and the Quarantine of Cuba," 41 
Foreign Affairs 552 (1963). Mallison, "Limited Naval Blockade or Quarantine- 
Interdiction : National and Collective Defense Claims Valid under International 
Law," 31 George Washington University Law Review 339 (1962) ; Meeker, 
"Defensive Quarantine and the Law," 57 A.J.I.L. 515 (1963) ; Fen wick, "The 
Quarantine Against Cuba: Legal or Illegal?" 57 A.J.I.L. 588 (1963); "Some 
Comments on the 'Quarantine' of Cuba," 57 A.J.I.L. 592 (1963) ; McDougal, 
"The Soviet-Cuban Quarantine and Self -Defense," 57 A.J.I.L. 597 (1963). See 
also Wright "The Cuban Quarantine," 57 A.J.I.L. 546 (1963). 



116 

The narrow or restrictive interpretation of Article 51 is based on 
the assumption that there can be but one acceptable construction of 
''armed attack," namely that defensive action may not be taken 
legally until after an initial actual armed attack has been instituted 
against a nation in repose by an aggressor. This view has been re- 
ferred to as a concept of "passivity" or the "sitting duck" doctrine, 
and received much criticism. 167 It is now generally held that such an 
excessively narrow view of Article 51 is quite out of keeping with 
the dynamic quality of law and with the tempo of the atomic-space 
age. Scientific and technological factors alone argue against the ac- 
ceptance of this view. 

The broader, and more acceptable rule, is that customary interna- 
tional law recognizes the inherent right of a state or states to engage 
in self-defense in provocative circumstances, particularly when a 
state has reasonable cause to believe that its national existence is 
imperiled or proximately endangered because of the implementation 
by another state of a known, dangerous and aggressive course of 
conduct. Article 51 in confirming the inherent right of a state to 
engage in self-defense upholds this rule of customary international 
law. The broader construction contributes directly to the security of 
nations from foreign aggression, and thereby provides a sounder 
base for a world community. 168 

b. The Maintenance of International Peace and Security 

An alternative legal basis to Article 51 is Chapter I of the United 
Nations Charter. This Chapter, consisting of Articles 1 and 2, sup- 
ports the validity of action by members of the Organization to main- 
tain international peace and security. Since the terms of the Charter 
are not limited in their application to the earth, and have in fact 
been extended to outer space, 169 members of the United Nations may 
validly engage in measures in outer space to maintain international 
peace and security. This right is derived from the basic premise that 
a State may engage in measures protective of its national existence. 

Unlike the rule of self-defense, which has been implemented either 
via individual or collective means, the maintenance of international 
peace and security has generally been considered to be a collective 



167 Comments by Adolf Berle and Oliver Lissitzyn in Columbia Law School 
News, p. 1:3 (November 7, 1962); McDougal, "The Soviet-Cuban Quarantine 
and Self -Defense," 57 A.J.I.L. 601 (1963). 

168 Bowett, Self-Defense in International Law (1958) ; Brownlie, "The Use of 
Force in Self -Defense," 37 Brit. Yb. Infl L. 183 (1961). 

169 U.N. Res. 1721 (XVI), Annex 2, infra, pp. 443-446; U.N. Res. 1802 (XVII), 
Annex 3, infra, pp. 446-450 ; U.N. Res. 1962 (XVIII), Annex 4, infra, pp. 450-452. 



117 

process. This has been based on the fundamental premise that collec- 
tive international activity in the security field is generally more con- 
ducive of satisfactory results than when such action is pursued 
unilaterally. 170 International law is in a state of flux concern- 
ing unilateral maintenance of international peace and security. Ar- 
ticle 2 (4) of the Charter contains the pledge of members that they 
will "refrain in their international relations from the threat or use 
of force against the territorial integrity or political independence of 
any state, or in any other manner inconsistent with the Purposes of 
the United Nations." In commenting on this provision in the context 
of the other purposes and principles of the Charter, 171 the Legal Ad- 
viser of the Department of State has said: "States living under the 
regime of that Charter can no longer find justification for the use of 
force in their mere unilateral declaration." 172 

Another basis for collective action, outside the United Nations 
Charter, but related to it, exists in the right of regional international 
organizations to maintain or enforce international peace and 
security. 173 

The 1947 Inter- American Treaty of Reciprocal Assistance, signed 
at the Rio Inter- American Conference for the "Maintenance of Con- 
tinental Peace and Security," provided in Article 6 that whenever 
any "fact or situation that might endanger the peace of America" 
existed, the signatories "shall meet immediately in order to agree on 
the measures * * * which should be taken * * * for the maintenance 
of the peace and security of the Continent." 174 

It may be concluded that nation- states may rely upon all pertinent 
principles and rules of international law in engaging in security and 
defensive measures in outer space. Among the major doctrines avail- 
able to States are the general customary rules of international law 
which authorize reasonable action in support of national self-defense. 
Reliance may be based upon the broad view of Article 51 and 
upon the right to maintain international peace and security as pro- 



170 Christol and Davis, supra, note 166, at 537. 

171 Article 1 (1) provides for the maintenance of "international peace and 
security;" Article 1 (2) imposes on members the duty to "strengthen universal 
peace;" Article 2 (3) requires that members must not endanger "international 
peace and security;" and Article 2 (6) imposes on non-members the duty to 
conform to "the maintenance of international peace and security." 

172 Chayes, "Law and the Quarantine of Cuba," 41 Foreign Affairs 553 (1953). 
For an appraisal see supra note 157. 

173 McDevitt, "The UN Charter and the Cuban Quarantine," 17 JAG Journal 
71 (1963) ; Meeker, supra note 166, at 518-522. 

174 62 Stat 1681 ; T.I.A.S. No. 1838 ; 43 A.JJ.L. Supp. 53 (1949). 



118 

vicled for in Articles 1 and 2 of the Charter. The two Charter con- 
cepts are not opposites. They are alternatives, and may be applied 
concurrently. In addition, pursuant to regional undertakings, such as 
the Rio Pact, States may engage in collective measures to maintain 
and enforce international peace and security. 

5. Social Activities 

Under this heading brief reference may be made to the influence of 
general space activities on the cultural standards of nations. Special- 
ists in many fields have been attracted to the novel challenges of the 
space age. The fields of interest are as broad as the encyclopedic 
curricula of great universities. Thus, intellectual interest has been 
wide-ranging with broad exchanges of views among experts in many 
fields. Such exchanges have not been unduly restricted by national 
frontiers. 

There has also been a cross-fertilization of similar disciplines. Of 
even greater interest has been the bringing together for common pur- 
poses of intellectual disciplines formerly as distant as law and 
science. There has been a great mobility of ideas. As a result there 
has developed a more broadly based and substantial world culture. 
With a growing cultural maturity — thanks to the broad interest in 
space — it is becoming possible to make judgments as to which disci- 
plines are most qualified to keep abreast of the on-going forces of the 
social complex. 175 

a. Expansion of Human Knowledge and Resulting Personal 
Satisfactions 

Space activities have been characterized by a universal interest in 
the individual benefits to be derived from this new environment. 
With the conquest of space there have been attendant personal re- 
wards and satisfactions. Not the least has been the extension of hu- 
man knowledge together with challenges to human values. This has 
resulted in demands for an orderly space environment, and in turn 
has led to demands for the application of principles and rules of law 
to space activities. It has also provided mankind with a maturing 
moral experience. One result has been to link space with such endur- 
ing goals of mankind as higher material conditions and even the 
ultimate expectation of a permanent world peace. This surging hope 
of mankind has been observed by Congressman Anfuso, who stated 
in 1959, with respect to the "deeper meaning of our emergence into 
outer space"' that this had provided new challenges "to man's moral 

175 Rode-Verschoor, "The Influence of the Exploration of Outer Space on Man- 
kind," Second Colloquium 134-138 (1960). 



119 

sense, his curiosity and capacity for wonder, his faith and reverence 
in God, and his spirit of adventure." 176 

The use of space as a means for the flowering of mankind's capabil- 
ities, as a social animal, has been well depicted by Andrew G. Ha- 
ley. He has written : 

There is a final factor common to both short- and long-term 

aspects of space flight that is not subject to rational justification. 

This is the undisputable fact that, because of human curiosity 

and zest for adventure, people simply want to explore the new 

frontier. It is a fundamental urge, as elemental as the new desire 

for material comfort or bodily security. 
And for the individual, the largest direct benefit will be a 

sense of participation in a great adventure, and a new breadth 

of understanding the universe around him. 177 

6. Political Activities 

Although outer space activities have had a serious and substantial 
impact upon the totality of the social complex, it is necessary to 
single out for special comment the explosive changes which have 
been wrought in the political arena. Space forces have worked on 
politics in several ways. First, there has been the impetus of clearly 
ascertainable practical results, such as the data accumulated from a 
single launch or a series of launches, manned or unmanned. Sec- 
ondly, and of equal if not greater significance, has been speculation 
as to future practical uses of space devices. Both of these forces have 
impinged with dramatic force upon policy makers and all who help 
to focus the attention of major policy makers upon more or less desir- 
able objectives. The role of policy makers, at whatever level of 
authority, takes on added significance in a new and developing 
field. 178 For this reason effective liaison between policy makers, legal 
planners, and leaders of the scientific community is of particular 
applicability in developing the law of outer space. 



176 Anf uso, "Is Space the Way to Peace and Abundance?" Second Colloquium 
1 (1960). 

177 Haley, "Space Exploration — the Problems of Today, Tomorrow and in the 
Future," Second Colloquium 47 ; Compare Yeager "Space and Cogno-Politics : a 
Third Force in World Affairs," ibid., 169-176; Keating, "Space Law and the 
Fourth Dimension of Our Age," First Colloquium 83 (1959) ; Yeager, "A Code 
for a New Frontier," ibid., 116-121. 

178 Goldsen, ed., Outer Space in World Politics 3-24 (1963). Compare, Hore- 
lick, The Soviet Union and the Political Uses of Outer Space (1961) and Hore- 
lick in Goldsen, ed., supra at 43-70 (1963). 

791-405 — 66 9 



120 

a. National Prestige 
National prestige is a weapon of immeasurable worth in the inter- 
national political forum. That spectacular successes in outer space 
have modified the prestige of nation-states and have had direct in- 
fluence upon the international power balance is so commonplace as to 
hardly require mention. In international politics it is not possible to 
avoid the fact that nation-states are competitive, and that standings 
in the competition of whatever sort — the fastest ocean liner, the larg- 
est number of Nobel prize winners, the most substantial foreign aid 
program — play a role in the formulation and execution of policy. 
The areas of competition in space are many, and there can be no 
doubt that the state which first places a man on the moon or some 
equally spectacular achievement will reap some political benefit. The 
process of converting political advantage into other tangible results 
is ever present. This may account for the fact, along with the re- 
quirement of maintaining adequate defensive postures, that substan- 
tial amounts of money and efforts are being dedicated to leadership 
in space. 

The problems connected with the translation of space activities 
into elements of national prestige have been clearly identified by 
James R. Killian, Jr., who, in an analysis of basic policy considera- 
tions, has said: 

Since World War II the status-seeking nations of the world 
community have relied increasingly on science and technology to 
build their prestige. The Soviets especially have used technology 
as an instrument of propaganda and power politics, as illus- 
trated by their great and successful efforts — and careful political 
timing — in space exploration. They have sought constantly to 
present spectacular accomplishments in space technology as an 
index of national power, and too often the press and the public 
at large have interpreted their spectacular exploits as indices of 
Soviet strength and scientific accomplishment. 

It must be admitted that spectacular accomplishments have 
temporarily enhanced the prestige of the Soviet Union, and we 
can all admire their achievements. But I doubt that their expan- 
sive emphasis on space exploration will be enough in the long 
pull to sustain either an image of strength or actual strength. 
This will be accomplished by a balanced effort in science and 
technology. True strength and lasting prestige in science and 
technology will come from the richness, variety, and depth of 
nation's total effort and from an outpouring of great discoveries 






121 

and creative accomplishments on a wide front by its scientists 

and engineers. 179 
It was his conclusion in 1962, that in the long run the United States 
would be better served by avoiding unnecessary and excessive compe- 
tition in prestige type space projects. However, it cannot be denied 
that the world political process is influenced by the successful equa- 
tion of spectacular space exploits with prestige. 180 The attention be- 
ing given in the United States at the present time to substantial 
successes in outer space is evidence of this fact, 
b. Policy Analysis and Formulation 

Outer space, as a patently real, and potentially critical area for 
mankind, has become an extremely sensitive focal point for national 
and international analysis and planning. This has come about for 
substantial reasons. 

Space activities have demanded a rather special attention because 
of their known and predicted capabilities. These activities are both 
dynamic and tentative. This focuses attention on the centrality of 
their importance for policy analysis. 

It is in such a focus that science, technology, defensive considera- 
tions, hopes for peaceful uses, intellectual preeminence, and all the 
rest — directly responsive to the overriding tempo of the times — con- 
stitute an important flux auguring so much good or so much harm to 
mankind. This is all summed up by man's constant reference to the 
"space age." Indeed, it is not too much to say that at this moment, 
and because of man's profound stake in space, national policies to- 
ward space very materially condition or substantially influence all 
other national policies. This is in large part the product of major 
concerns over the ultimate uses of outer space. This concern has been 
magnified by the great unknowns awaiting discovery in space. 

Pending mankind's becoming more at home in and better qualified 
to judge his future in outer space and its impact upon his tradition- 
ally earth-bound patterns, this area will constitute a special param- 

179 Killian, "Shaping a Public Policy for the Space Age," in Bloomfield, ed., 
supra note 66, at 183-184. 

180 Lall, "Space Exploration — Some Legal and Political Aspects," Second Col- 
loquium 76-78, 97-105 (1960) ; Dr. Edward C. Welsh, executive secretary of the 
National Aeronautics and Space Council, in supporting an American lunar pro- 
gram, said in 1963, that national prestige was one of several motivating consid- 
erations. He advanced five reasons for a lunar effort: "To test gear for more 
distant space travel ; to develop technology ; to insure against losing prestige 
'so essential at the negotiating table' ; to develop skills and products with great 
potential economic impact, and to help build the capability to deter aggression." 
New York Times, April 4, 1963. 



122 

eter for his earthly hopes and fears. So long as this condition ex- 
ists, national and international space policies — both in contemplation 
and in fact — will be most carefully inspected in order to determine 
the influence of such programs upon the balance of man's ongoing 
processes and purposes. Keen insight into the general policies and 
special concerns of nations may be acquired through an accurate and 
systematic forecasting of their programs and expectations in outer 
space. 

c. International Cooperation 

It has often been said that if States were able to base their policies 
upon principles of good will that nowhere could this be better dem- 
onstrated than in their outer space relations. This is based, at least 
in part, on the belief that national activities in space involve common 
national benefits, and that the mutual self-interest of nations consti- 
tutes a substantial inducement to international political and legal 
accommodation. Moreover, it has been suggested that because of the 
mutuality of space interests and problems, and the extraordinary 
dangers which confront states which fail to demonstrate a coopera- 
tive attitude in such matters, that these very interests and problems 
will induce states to embark upon cooperative approaches to meet 
their rational, common advantage. It has also been suggested that, 
assuming space to possess these inducements to limited cooperation, 
such cooperation would lead inevitably — and probably sooner than 
later — to general international cooperation. 

While it is too soon to render a final judgment on this imaginative 
idea, it is probably safe to say that at the moment space has neither 
completely achieved nor failed to achieve the quality of a catalyst 
envisioned by the proponents of the concept. That effective interna- 
tional cooperation is one of man's grandest desires and most signifi- 
cant values is almost universally accepted as a fact. However, when 
this concept is placed in juxtaposition with practical problems raised 
by national views of advantage, welfare, and security it readily be- 
comes clear that varying national viewpoints may provide friction 
rather than cooperation. It is true that "the use of outer space may 
create new international problems and tensions. We should not for- 
get, however, that it also increases the incentives and opportunities 
for nations to live together in peace and harmony." 181 Space, not 
unlike other areas used by men, requires international cooperation 
for its most effective utilization. Conservation of resources, allocation 
of limited radio frequencies, for example, as well as general efficiency 
require international cooperation. Without such regulation and con- 

181 Brooks in Ramo, ed., supra note 81, at 209-210. 



123 

trol, one can only imagine an ultimate condition of anarchy in outer 
space. 182 In order to enlarge the benefits achievable through the 
exploitation of outer space, many institutions — both public and pri- 
vate — have been devised or existing ones enlarged to manage interna- 
tional cooperation. 183 

As has been suggested by Odishaw, the "challenges implied in the 
exploration of space are not restricted to science." 184 A major chal- 
lenge is to man himself. If he can meet it, there is a very substantial 
possibility that the chances for international cooperation engendered 
in space may at long last be brought back to earth, 
d. A Unifying Force for Peace 

Proceeding one step further, it has been suggested that the end 
product of international cooperation in space matters will be a more 
peacefully oriented universe. The rationality of this concept depends, 
at least in part, on some alleviation of the uneasy nuclear stalemate 
which now confronts major international powers. Fortunately, the 
balance of terror has produced only a "cold war" condition as be- 
tween major powers. So long as this condition exists the multiple 
factors of the social complex continue to provide mankind many in- 
ternational options — including the extremes of hot war and peace. 185 
Whether mankind may be able to resolve these problems in a suitable 
political and legal fashion is the subject to which attention is next 
directed. 



182 Jessup and Taubenfeld, Controls for Outer Space and the Antarctic Anal- 
ogy 193-284 (1959). 

183 Schwartz, International Organizations and Space Cooperation (1962). 

184 Odishaw, "International Cooperation in Space Science," in Bloomfield, ed., 
supra note 66, at 119. 

185 Keating, supra note 177, at 89. "The essence of a suggested space law, 
whether or not adopted in itself, may spill over into other areas of internation- 
al law and thus exert an influence for lasting peace." He quotes a 1958 address 
by Charles S. Rhyne : "Perhaps joint effort on law for peaceful control of Outer 
Space can pave the path to legal machinery to insure peace on planet Earth." 
Ibid., 85. Compare Anfuso, supra note 176, at 1 ; Lall, supt'a note 180 at 75 ; 
Yeager, supra note 177, at 173; and Kecstemeti, "Outer Space and World 
Peace," in Goldsen, ed., supra note 178, at 25-42. 



CHAPTER III 

THE DEVELOPMENT OF THE LAW OF OUTER SPACE 

A. LEGAL PRINCIPLES AND RULES 

A brief reference to the way in which legal "principles" and 
"rules" will be used will contribute greatly to an understanding of 
the problems involved in the development of the law of outer space. 

International law, it has been said, is a body of principles and 
rules binding upon states, international organizations, and individ- 
uals. A more traditional characterization of international law is 
that it is a body of principles and rules generally accepted by civi- 
lized states as governing their interrelationships. A common element 
of these vastly different approaches is that international law encom- 
passes principles and rules. 1 

The major difference between a principle and a rule is that the 
former is intentionally broad in its coverage and fundamental in its 
orientation. Rules are narrower, more specific, and are put forward 
in terms of penalties in the event of noncompliance. Principles, like 
rules, are intended to be interpreted. Nonetheless, principles tend to 
be associated with eternal verities, whereas rules are more readily 
affected by the pressures of the social complex and are, therefore, less 
stable and less impressive in their historic acceptability. 

The distinctions made by Pound are persuasive, and are accepted 
here. He holds that a "principle is an authoritative starting point for 
legal reasoning." 2 The principles are the product of developed ex- 
perience. It is experience which society has determined to be signifi- 
cant and rests upon reasoned differences. As illustrations of legal 
principles he refers to "where one intentionally does something 
which on its face is an injury to another he must respond for the 
resulting injury unless he can justify it." Or, "One person is not to 
be unjustly enriched at the expense of another." 3 

Rules, on the other hand, are precepts which attach "a definite 
detailed legal consequence to a definite detailed state of facts." 4 II- 



1 Christol, "Remedies for Individuals Under World Law," 56 Northwestern 
University Law Review 66-68 (1961). 

2 Pound, Justice According to Law 56 (1951). 

3 Ibid., 56-57. 

4 Ibid., 56. 



126 

lustrations are cited from primitive codes, as in the Code of Hammu- 
rabi, "If a free man strike a free man he shall pay ten shekels of 
silver," or, in the Roman Twelve Tables "If a father sell the son 
three times, let the son be free from the father." 5 Since it is not pos- 
sible to imagine all possible fact combinations and assign legal conse- 
quences to conformity or failure to conform, the concept of the prin- 
ciple lends itself to a more satisfactory description of total legal 
possibilities. 

In international law it is customary to refer to principles of sover- 
eign equality of states, national existence, national independence, 
self-defense, international peace and security, etc. It has been com- 
mon practice to refer to these principles as fundamental rights. 6 The 
rules of international law on the other hand relate to more prosaic 
subjects, such as guides to treaty interpretation, procedures for ob- 
taining diplomatic privileges and immunities, factors to take into 
account in the event of the nationalization of foreign property, etc. 
The distinctions between principles and rules in international law 
can be well drawn, and there should be no cause for confusion. 

The principles and rules of international law are practiced. Al- 
though they exist in a loosely organized legal order they may be en- 
forced, as well, depending upon the nature of the problem, the mu- 
tuality of interests, and the totality of the pressures contained within 
the social complex of a given time and place. 7 It has been pointed out 
that the rules of international law, no matter how perfectly stated, 
cannot enforce themselves. Even so, it is well to recall that it is er- 
roneous to believe "that legal rules are useless if they do not in them- 
selves guarantee lawful activity." 8 States, in considering the applica- 
tion of legal principles and rules to the use of outer space by space 
devices, will be obliged to take into account the fundamental right 
and duty relationships envisioned in such concepts. 

5 Ibid. 

6 Fenwick, International Law 213-214 (3d ed. 1948). Paton has described the 
role and function of legal principles. "Through the medium of the principle, law 
can draw nourishment from the views of the community, for the ratio legis is 
wide and, in deducing from it a particular rule, regard may be paid to the 
circumstances to which the rule is to be applied." Principles serve to give 
cohesion to a particular branch of the law, take into account practical needs 
and ethical requirements, and are "elastic enough to afford opportunities for 
development in the rules that are based upon it." Paton, A Text-Book of Juris- 
prudence 176 (2nd ed., 1951). 

7 1 Hyde, International Law Chiefly as Interpreted and Applied by the United 
States 14-15 (2nd ed. 1945). 

8 Johnson 55, Proceedings of the American Society of International Law 165 
(1961). 



127 

Attention will now be directed to the international principles and 
rules, and to the rights and duties confronting states, and other in- 
ternational persons, in the rapidly emerging law of outer space. 

B. THE DECISIONAL PROCESS 

It is necessary to inquire initially if the traditional source of inter- 
national law, custom, has as yet established norms of conduct for the 
use of space devices. Attention will be directed to an analysis of 
other international law sources in following sections. 

1. Custom: Collaborative Activities and the Uniformity of 
Expectations 

In order to determine whether there now exists a customary inter- 
national law for certain uses of outer space, it is necessary to focus on 
a set of highly interesting facts. It is also necessary to relate this set 
of facts to the components of customary law. By comparing the facts 
with the legal standards and characteristics of custom,, it will be pos- 
sible to come to certain significant conclusions. 

a. Collaborative Activities 

The present large scale use of outer space by space devices resulted 
primarily from the exploration of outer space by scientists during 
the International Geophysical Year, July 1, 1957, to December 31, 
1958. 9 The successful employment of space devices during this period 
by scientists from 66 states has resulted in continued cooperative 
efforts in the areas of rockets and satellites. It has also contributed 
materially to the development of additional cooperative procedures 
for the same and different kinds of space devices for the period since 
January 1, 1959. 

The relationship of such practices and experiences is so important 
to the development of an international law of outer space that the 
highlights of these efforts need be briefly recounted. 

The IGY was designed as a coordinated, scientific effort whereby 
man would be permitted to comprehend more fully his multidimen- 
sional physical environment. Through the IGY many thousands of 
scientists, the world over, acquired a new understanding of the earth 
beneath, the air and water about, and the universe around him. De- 
spite the fact that the IGY took place during the period of serious 
political unrest and contention, cooperation among scientists, with- 
out regard to nationality, was readily achieved. The appraisal of Dr. 



9 See generally Chapman, IGY: Year of Discovery (1959); Marshack, The 
World in Space (1958) ; Sullivan, Assault on the Unknown: The International 
Geophysical Year (1961) ; Wilson, I.G.Y., The Year of the New Moons (1961). 



128 

Hugh Odishaw, Executive Secretary, United States National Com- 
mittee, IGY, is a challenging one. He stated "the IGY is the single 
most significant peaceful activity of mankind since the renaissance 
and the Copernican revolution." 10 The IGY was an important ele- 
ment of the larger scientific revolution which has been described as 
the event which has influenced mankind more than any other since 
the rise of Christianity. 11 These conclusions, which appear to be well 
merited, cannot but have a great influence upon the future course of 
international law. 

The concept of an International Geophysical Year dates back to a 
discussion at the home of Dr. James A. Van Allen on April 5, 1950. 
Dr. Lloyd V. Berkner referred to the fact that 1957-1958 would be a 
period of unusually high sunspot activity, and would fall twenty-five 
years after the Second Polar Year. Since several eclipses were sched- 
uled for the same period, it appeared to be an unusually propitious 
moment for extended scientific investigations. Berkner, with the ap- 
proval of the group, presented a program of scientific investigation 
to an international scientific body known as the Mixed Commission 
on the Ionosphere during midsummer 1950. The latter referred it to 
the International Council of Scientific Unions (ICSU). The original 
notion of a polar study was modified as the result of the interest 
displayed by scientists engaged in meteorological, magnetic, and 
electrical research. When the ICSU General Assembly met in Oc- 
tober, 1952, Dr. Sydney Chapman of Queen's College, Oxford, who 
had been present at the Van Allen home in 1950, suggested that the 
name be changed to International Geophysical Year. This proposal 
was adopted. ICSU, in order to further the project, established a 
Special Committee which during the summer of 1953 scheduled a 
meeting attended by representatives of the numerous scientific un- 
ions which composed ICSU. 12 At this time a transition between man- 



10 Report on the International Geophysical Year, February 1959, Hearings 
before the Subcommittee of the Committee on Appropriations, House of Repre- 
sentatives, 86th Cong., 1st Sess., 17 (1959) ; hereafter cited Report on The IGY, 
1959 ; Odishaw also referred to the importance of the satellite program. He said 
"The successful launching of artificial satellites in the IGY program is a pio- 
neering and historic event per se. It has ushered in the space age. It will 
inevitably lead to greatly increased knowledge of the earth and the solar sys- 
tem. The space age, taken in its fullest technical sense, means that a new era 
of science is opening up, with all that that suggests." Ibid., 19. 

11 Butterfield, The Origins of Modern Science viii (1949). 

12 Supra, pp. 81-84. ICSU has been described by Odishaw as "a non-govern- 
mental quasi-holding company, composed of subject-matter unions covering var- 
ious fields of science with headquarters at The Hague." In Goldsen, ed., Inter- 
national Political Implications of Activities in Outer Space, 59 (1960). 



129 

agement of the program by ICSU and its component scientific 
unions took place, with national IGY committees assuming broad re- 
sponsibilities. The national committees were coordinated under the 
title of Comite Special de VAnnee Gee-physique International 
(CSAGI). It was this group which was to be generally responsible 
for the scientific planning of the IGY. 13 

In the United States the national committee (USNC-IGY) was 
appointed by Dr. Detlev W. Bronk, Chairman, National Science 
Board, and President, National Academy of Sciences. The chairman 
of USNC-IGY was Dr. Joseph Kaplan, and he was assisted by five 
substantive committees in the fields of data processing and Antarctic, 
Arctic, Continental, and Equatorial Activities. He was also assisted 
by thirteen technical panels, including an earth satellite program 
under the chairmanship of Dr. Richard W. Porter and a rocketry 
program under the chairmanship of Dr. Fred L. Whipple. 14 It is 
important to note the titles of the other panels since the satellite and 
rocket programs provided means to acquire scientific data in almost 
all of these fields. They were aurora and airglow, cosmic rays, geo- 
magnetism, glaciology, ionospheric physics, longitude and latitude, 
meteorology and nuclear radiation, oceanography, seismology and 
gravity, solar activity, and world days and communications. Scien- 
tists in the Soviet Union also organized their research activities 
under the foregoing headings. 

During the summer and early fall of 1954, three private interna- 
tional scientific bodies adopted resolutions dealing with the use of 
satellites during the IGY. Of the resolutions adopted by the Interna- 
tional Scientific Radio Union and the International Union of Geod- 
esy and Geophysics, the one adopted by CSAGI at its General As- 
sembly in Rome on October 4, 1954, is most pertinent. The CSAGI 
General Assembly, after considering the research capabilities of both 
rockets and satellites, resolved as follows: 

In view of the great importance of observations during ex- 
tended periods of time of extra-terrestrial radiations and geo- 
physical phenomena in the upper atmosphere, and in view of the 
advanced state of present rocket techniques, CSAGI recom- 
mends that thought be given to the launching of small satellite 
vehicles, to their scientific instrumentation, and to the new prob- 



13 Sullivan, "The International Geophysical Year," 521 International Concilia- 
tion 269-271 (1959). 

14 International Geophysical Year, A Special Report Prepared oy the National 
Academy of Sciences for the Committee on Appropriations of the United States 
Senate, 84th Cong., 2d Sess., 24-27 (1956). 



130 

lems associated with satellite experiments, such as power supply, 
telemetering, and orientation of the vehicle. 15 

As a result of these recommendations the USNC-IGY, after deter- 
mining the feasibility of satellites for scientific purposes, on March 
14, 1955, recommended an IGY satellite program to the President of 
the National Academy of Sciences and the Director of the National 
Science Foundation. 16 On May 6, 1955 the USNC-IGY special panel 
on satellites transmitted "the proposed program to the Government 
through the National Science Foundation. Late in July, the Govern- 
ment's approval of the satellite program permitted the chairman of 
the USNC to notify CSAGI of our plans." 17 

An exchange of informative letters then took place between Dr. 
Kaplan and Dr. Chapman, who at this time was President of 
CSAGI. On July 26, 1955, Kaplan wrote: 

The Committee on behalf of the National Academy of 
Sciences wishes to inform you at this time that, in response to 
the CSAGI resolution, the program of the United States for the 
International Geoplrysical Year now includes definite plans for 
the launching of small satellites during the International Geo- 
physical Year. 

The United States National Committee believes that signifi- 
cant scientific data may be gathered as a result of this program 
in such fields as geodesy, atmospheric physics, ionospheric phys- 
ics, auroral physics, and solar radiation. The participation of 
other nations engaged in the International Geophysical Year is 
invited, and to this end we shall provide full scientific informa- 
tion on the orbiting vehicle so that other nations may monitor 
the device and make appropriate observations. The United 
States National Committee looks forward to the interest and 



15 5 Rocket and Satellite Conference Document 4 (September 25, 1957) ; also 
quoted by Odishaw "The Satellite Program for the International Geophysical 
Year," 35 Department of State Bulletin 281 (1956) ; Additional CSAGI resolu- 
tions were adopted at the Western Hemisphere Regional Conference, Rio de 
Janeiro, 1956, the General Assembly, Barcelona, 1956, the joint CSAGI/CSA 
Conference, South Africa, 1957, and the Western Pacific Regional Conference, 
Tokyo, 1957. These resolutions dealing with the use of rockets and satellites for 
scientific purposes, called for the dissemination of acquired research data, des- 
ignation of polar orbits, compatibility of tracking and telemetering systems, 
launching schedules and quality of instrumentation. 5 R&S Conf Doc. Supra, 
5-10. 

16 Odishaw, ibid. 

17 Ibid. 



131 

cooperation of other nations in what it hopes will be one of the 

great scientific achievements of our time. 18 

In his response to Dr. Kaplan dated August 3, 1955, Dr. Chapman 
wrote that he was pleased to learn that "your Committee felt able to 
resolve to construct and launch small satellites as a part of the United 
States contribution to the International Geophysical Year and to 
announce these plans publicly." 19 On July 29, 1955, President Eisen- 
hower, through his press secretary, announced that he had "approved 
plans by this country for going ahead with the launching of small 
unmanned earth-circling satellites as part of the United States partic- 
ipation in the International Geophysical Year * * * The President 
expressed personal gratification that the American program will 
provide scientists of all nations this important and unique opportu- 
nity for the advancement of science." 20 

The foregoing expressions occasionally appear to denote an official 
or public character for the United States IGY rocket and satellite 
programs. Although the broad details of the IGY programs were 
planned and initiated by scientists around the world, the scientists 
were compelled to secure funds, as well as logistic support, from 
national governments in order to embark upon their imaginative 
plans. 21 

The IGY program could, of course, have been managed in several 
ways. It might have been implemented through scientists acting in- 
dependently of their national governments and in cooperation with 
scientists, acting as individuals, situated throughout the world. Or, it 
might have been approached politically, with the programs being 
entirely initiated and managed by governments. In view of the gov- 
ernmental support needed by and given to the scientists, it might 
have been regarded as a mixed effort. It has always been the position 
of the United States that the power to make decisions as to policy 
and plans was in the hands of the individual scientists (some of 
whom were in the employ of the national government), and that the 
policy and planning influences of the government were minimal. In 
the United States, government interest in policy matters, to the ex- 
tent that it existed, depended upon the government's need to be kept 
aware of funding and logistical support requirements. The influence 
of such matters on the policies and plans of the scientists was quite 



18 Hid., 281-282. 

19 Hid., 282. 

20 "Plans for Launching of Earth-Circling Satellites," 33 Department of State 
Bulletin 218 (1955) ; Odishaw, supra note 15, at 282. 

21 Odishaw, ibid. 



132 

limited. The great freedom given to United States scientists in this 
kind of situation has been applauded by Killian. lie has said that 
"international groups of scientists seem able to achieve cooperation 
of great importance when they are free of political entanglements 
and can act freely with the tropism toward cooperation which is 
traditional among scientists." 22 

In the United States the link between scientists and national gov- 
ernment was effected under the "joint auspices of the National Acad- 
emy of Sciences and the National Science Foundation." 23 Several 
illustrations of the planning, policy, and managerial roles of the 
scientists may be mentioned. 

In July 1955, plans to send scientists to the Antarctic were fixed 
by them at an IGY meeting in Paris. Details were worked out for 
the establishment of about 30 scientific stations by about twelve 
countries. Further, the scientists "mapped out a coordinated plan for 
appropriately spacing the scientific stations and agreed on the estab- 
lishment of an Antarctic Weather Central where information can be 
pooled, collated, and disseminated. They worked out common safety 
procedures and reached other amiable decisions about their joint 
effort." 24 Scientists interested in the IGY rocket and satellite pro- 
grams coordinated extensively in selecting and manning tracking 
and observational facilities. Agreement was also reached as to the 
appropriate radio channel for use by the United States radio track- 
ing system for Explorer I and Explorer III and Vanguard I, name- 
ly 108 and 108.03 mc. 25 The Soviets received 20.005 and 40.002 mc. 
for Sputniks I to III. 

In order to understand the impact of space activities during the 
IGY on the development of a customary international law of outer 



22 Killian, "Shaping a Public Policy for the Space Age," in Bloomfield, eti\, 
Outer Space Prospects for Man and Society, 190-191 (1962) ; Compare, Meany, 
"Cooperation in Science, Culture and Education," 37 Department of State Bul- 
letin 765 (1957). 

23 White House Press Release, March 28, 1955, 32 Department of State Bulle- 
tin 644 (1955). For a delineation of ways in which United States scientists may 
be related to the national government, see DuBridge, "Policy and the Scien- 
tists," 41 Foreign Affairs 571-573 (1963). 

24 Rudolph, "Geophysical Science and Foreign Relations," 33 Department of 
State Bulletin 990 (1955). 

25 Odishaw, supra note 15, at 283-285. Glennan has noted that "In the space 
activities initiated during the IGY it was found desirable to exchange informa- 
tion on the planning of experiments, to give prompt notice of launchings, early 
information on orbits, and such other data as would permit participation of 
others in observations of scientific value." "Opportunities for International 
Cooperation in Space Exploration," 42 Department of State Bulletin 61 (1960). 



133 

space it is necessary to characterize the nature of such activities. 
Although much of the planning and management of scientific activi- 
ties were in the hands of private persons — most often scientists — 
such activities received substantial governmental assistance. The case 
of the United States is illustrative. 

Just as many governments gave assistance to their national IGY 
committees, so the United States provided substantial assistance to 
the United States National Committee. Beginning in 1954, Congress 
provided some forty-three million dollars for the United States 
scientific aspects of the program. 26 The Navy added logistic support 
in the Antarctic through the use of the icebreaker, the U.S.S. Atka, 
and in Operation Deep Freeze I. 27 The Department of State "worked 
with the American scientists in their planning. It has lent its facili- 
ties for developing cooperative arrangements with scientists in other 
countries when such arrangements were appropriate." 28 

The Department of Defense provided much assistance to the 
USNC-IGY in its rocket and satellite program. 29 Additional assist- 
ance came from the Coast and Geodetic Survey, the Weather Bu- 
reau, and the National Bureau of Standards. Additional assistance 
came from private organizations and institutions, especially the uni- 
versities. 30 

By way of illustration it may be noted that in private negotiations 
for the establishment of a world data center to be located in the 
United States and to be used in the collection, collation, and distribu- 
tion of scientific information, American scientists took the position 
that they would commit the United States to an expenditure of two 
million dollars. The uniqueness of the situation was described by 
Odishaw as follows: "We took that position not being in fact sure 
that we could guarantee it. We agreed for purely scientific reasons; 
yet, one could say that we had committed the United States. Nev- 
ertheless, a certain freedom of maneuver was left to the government 
because it was not committed officially. Any embarrassment from a 
refusal by the U.S. government to implement our share would have 
fallen mainly upon the Academy of Sciences and the scientists 
involved." 31 Through a myriad of such private understandings, 



26 Atwood, "The International Geophysical Year in Retrospect," 40 Depart- 
ment of State Bulletin 682 (1959). 

27 Rudolph, supra note 24, at 990. 

28 Ibid., 991. 

29 Atwood, supra note 26, at 684. 

30 Odishaw, Report on the IGY, 1959, supra note 10, at 20. 

31 Odishaw, "Comments," in Goldsen, supra note 12, at 77-78. 



134 

buttressed by substantial governmental support in money and in serv- 
ices, a pattern of international cooperative conduct emerged. 

The IGY clearly demonstrated the ability of scientists from sixty- 
six countries to work together through their nongovernmental inter- 
national organizations. 32 The scientists as the "producers, supporters 
and consumers" 33 of international scientific activity were organized 
on a private national basis. Nonetheless, they were frequently mobi- 
lized by governmental bodies to embark upon the vast explorations 
of the IGY. This was well summarized by Odishaw : 

First, it was not a government program, although govern- 
ments at home and abroad supported it generously. Second, it 
was not a military program, although the military establish- 
ments of many governments, like our own, provided a variety of 
logistic support. Third, it was not an 'internationalized' pro- 
gram, even though one of its greatest achievements was in the 
field of international cooperation. The very fact that it was none 
of these things accounts for a large measure of its success, scien- 
tific and international. 

What it was and what it is is this: A gathering together of 
private human beings, each of whom had a vital personal inter- 
est in a particular subject, each of whom felt that this subject 
needed, out of its own exigencies, a concerted attack, but one for 
which a simple, uncluttered mechanism would suffice. 

Thus the IGY was at root an enterprise of private persons, an 
enterprise in the hands of doers, and the form and shape it took 
largely reflect this. This form and shape reveal much about the 
character of the IGY and may well afford a pattern worth 
noting, worth using again in other areas. 

Deliberations at the general assemblies suffered from no ob- 
vious considerations of national 'face,' or considerations of offi- 
cial positions in other areas or at other times, as formal gov- 
ernmental deliberations inevitably appear to do. Energies were 
directed to the restricted problem at hand. By and large, the 
problem's own objectivity led to objectivity in discussions, con- 
duct and action. 34 

Even before the IGY had come to a close, participants were mak- 
ing plans for continuing the researches conducted during 1957 and 

32 Atwood, supra note 25, at 682. 

33 Brode, "National and International Science," 42 Department of State Bulle- 
tin 736 (1960). 

34 Odishaw, Report on the IGY, 1959, supra note 10, at 19-20. Compare, Odi- 
shaw, "International Geophysical Year," 128 Science, No. 3339 (1958) and 129 
Science, No. 3340 (1959). 



135 

1958. The successor organization in the United States was known as 
International Geophysical Cooperation-1959 (IGC-59). Thus, public 
support for privately initiated space activities was extended in the 
years immediately following the close of the IGY. 

IGC-59 was proposed by the Soviets shortly prior to the 1958 
CSAGI meeting in Moscow. United States scientists discussed the 
proposal advanced by Soviet scientists with representatives of the 
United States government in order to ascertain governmental policy 
on the extension of the IGY. Following a review of reasons why 
IGC-59 might be established, and after consultations between lead- 
ing American scientists and representatives, it was decided that 
Americans would cooperate with three programs during the IGC-59. 
These three programs dealt with network activities, funded major 
programs, and special projects. The network activities included the 
fields of meteorology, ionospheric physics, vertical incidence, geo- 
magnetism, oceanography, and tide gages. The funded areas included 
the Antarctic and space science programs, which the United States 
had planned to continue on a national basis in any event. The special 
projects areas included investigations of aurora and airglow, cosmic 
rays, geomagnetism, glaciology, gravity, ionospheric physics, longi- 
tude and latitude, meteorology, oceanography, rocketry, seismology, 
and solar activity. 35 

According to Kaplan there were five major reasons for continued 
geophysical cooperation during 1959 : 

(i) The fact that many IGY programs and projects got start- 
ed late in 1957; (ii) observations of large scale geophysical 
phenomena, as for example, atmospheric circulation and sea level 
changes, incidence of aurora, etc., require extensive observa- 
tions of the kind fostered by IGY for as long as possible; (iii) 
observations of phenomena related to solar effects should be con- 
tinued through the diminishing part of the solar cycle to capital- 
ize fully on the IGY observations during the peak of the great- 
est cycle ever observed; (iv) to provide for the possibility of 
modifying certain programs to secure scientific information of 
greater significance and greater value to the elucidation of early 
IGY information; and, (v) to maintain international geophysi- 
cal cooperation on an operational level to provide for continuity 
to future cooperative programs (oceanography, space explora- 
tion, Antarctic, Arctic, etc.) which are now being planned and 



35 Kaplan, supra note 10, at 8-10. 
791-405—66 10 



136 

for which international committees have been or may soon be 
established. 36 

Because of the unwillingness to terminate a scientific program which 
was able to supply valuable data, the IGY was replaced by the 
IGC-59, the USNC-IGY was replaced by the USNC-IGC, and 
CSAGI was replaced by the Special Committee for Inter-Union 
Cooperation in Geophysics (SCG). Despite the changes in nomencla- 
ture the manifest intent of the earth-space scientists, with the ap- 
proval of their respective governments, was to continue the basic 
scientific research engaged in during 1957-1958. The United States 
scientists in contemplating IGC-59 were aware that "rocket and 
satellite programs would be largely under the sponsorship of NASA, 
and that the 1959 program in the Antarctic was already imple- 
mented." 37 The National Aeronautics and Space Administration had 
been created on July 29, 1958, and thereupon established an Office of 
International Programs. 

Nonetheless, private scientific space activities involving the use of 
rockets and satellites were to be continued, with such research to be 
coordinated through ICSU's new Committee on Space Research 
(COSPAR). The latter had been established during ICSU'S General 
Assembly meeting in Washington in October, 1958. According to the 
ICSU resolution, the purpose of COSPAR was "to provide the 
world scientific community with the means whereby it may exploit 
the possibilities of satellites and space probes of all kinds for scien- 
tific purposes, and exchange the resulting data on a cooperative 
basis." 38 It was assigned the responsibility of "continuing and 
fostering, after the end of the IGY, international cooperation in all 
sciences that make use of the new research tools of rockets 
and satellites." 39 

The ongoing work of COSPAR since 1958 has been highlighted by 
two essential contributions. Its members have continued to plan and 
participate in much of the rocket and satellite work accomplished 

36 Ibid., 9. Berkner supported continued international cooperation in this field 
because of the need to continue the operation of tracking stations in many 
countries "telemetry has to be done in different places; there are scientists 
abroad who have good ideas that should be incorporated in the experiments in 
rockets and satellites * * *" Berkner, supra note 10, at 182. 

37 Kaplan, supra note 10, at 9. 

38 Soviet Space Programs, supra note 10, Chapter I at 177 ; "Radio Frequency 
Control in Space Telecommunications," Senate Committee on Aeronautical and 
Space Sciences, 86th Cong., 2d Sess., 105 (1960). The Charter of COSPAR is 
printed in Legal Problems of Space Exploration, A Symposium, supra note 9, 
Chapter I at 1292-1296. 

39 1 COSPAR Information Bulletin 1 (March 1960). 



137 

during IGY. However, COSPAR is not an operational activity. Sec- 
ond, it has encouraged a "spirit of scientific cooperation in fields 
closely related to space research, and * * * [has] provided a meeting 
place for exchange of scientific initiative from all directions." 40 It 
has served as a medium for the distribution of space information, 
including notice of projected launches by the United States, and 
scientific papers presented at annual forums of the organization. 41 
The broad scope of its work has been well summed up by Berkner. 
He has said that "As its charter indicates, COSPAR is not con- 
cerned with the technology of rocketry, with launchings or with 
launching vehicles. It is concerned with scientific experiments, on- 
board and ground-based, which may be conducted by means of rock- 
ets and space vehicles. In broad terms, it is concerned with pure 
scientific inquiry." 42 It is noteworthy that scientists from all track- 
ing countries, as well as the launching countries, have joined to pro- 
mote the success of this scientific endeavor. 

During IGY the United States satellite program was designed to 
launch 12 satellites. 43 While more than 300 research sounding rockets 
were launched successfully during the IGY, only eight United States 
launches of space vehicles proved to be successful. By comparison the 
Soviets successfully launched but three satellites. The United States 
was successful in its launch of five satellites, namely Explorer I, 
Vanguard I, Explorer III, Explorer IV, and Project Score. The 
United States also launched successfully three lunar probes, namely, 
Pioneer 1, 2, and 3. The successful Soviet satellite launches were 
Sputnik 1, 2, and 3. The perigees of these successful satellites varied 
from 115 statute miles to 408 statute miles. The apogees varied from 
588 statute miles to 2462 statute miles. 44 All were launched in connec- 
tion with reasonable scientific research goals. They were engaged in 
peaceful, that is, nonaggressive and beneficial uses of outer space. 

As is well known, space devices comparable to those launched 
during the International Geophysical Year have been continually 
employed for comparable purposes during the years since 1958. As of 

40 Schwartz, "International Space Organizations," in Odishaw, ed., The Chal- 
lenges of Space 246 (1962) ; Schwartz, International Organizations and Space 
Cooperation 32-55 (1962). 

41 van de Hulst, "COSPAR and Space Co-operation," in Odishaw, ed., supra 
note 40, at 265-266 ; Soviet Space Programs, supra note 38, at 177-180. 

42 Berkner, "The Continuing Space Program," supra note 10, at 178-177-180. 

43 International Geophysical Year, supra note 14, at 17 (1956). 

44 2 STL Space Log 8-9 (December, 1962) ; 1 COSPAR Bulletin 3-5 (March, 
1960) ; Van Allen, "U.S. Rocket and Satellite Program," supra note 10, at 158, 
also includes Vanguard II, launched on February 17, 1959, as a "U.S. IGY 
satellite." 



138 

mid-1964, it has been reported that the United States had 100 space 
vehicles in orbit, Canada 1, and the Soviet Union 16. 45 It should be 
recalled that about 150 space vehicles had been orbited successfully 
up to 1963, and that a considerable number of launches have failed to 
place a vehicle into orbit. 

Official confirmation of the relationship between government and 
scientists in the United States during the IGY was acknowledged by 
President Eisenhower on October 9, 1957. After calling attention to 
the decision taken by space scientists in Rome in October 1954, rec- 
ommending that a scientific satellite program be instituted, which 
decision was arrived at by them in their private, or nonpublic, capac- 
ities, the President stated : 

Responsibility within the Government for scientific aspects 
of the program was assigned to the National Science Founda- 
tions, working in close cooperation with the United States Na- 
tional Committee for the International Geophysical Year. The 
Department of Defense was made responsible for supplying the 
rocketry needed to place a satellite in orbit without interfering 
with the top-priority ballistic missile program. In line with the 
recommendations of a group of United States scientists advising 
the Department of Defense, the satellite project was assigned to 
the Naval Research Laboratory as Project Vanguard. 46 
The extent to which national governments supported scientific 
efforts during the IGY, particularly so far as outer space activities 
were concerned, led to some speculation in the United States and 
elsewhere as to the legal implications arising from the launch and 
use of space devices. 47 In order to establish a position for the United 
States, Mr. Loftus Becker, Legal Adviser to the Department of 
State, in testifying before the Special Senate Committee on Space 
and Astronautics as early as May 14, 1958, observed "The arrange- 
ments with respect to the International Geophysical Year were not 
made on an intergovernmental basis. They were arrangements made 
between scientific bodies in a private capacity. It is true that certain 
governments, including the Soviet Union and the United States, an- 
nounced in advance that during the International Geophysical Year 
they intended to place objects in orbit around the earth. And it was 



45 4 STL Space Log 40 (Summer, 1964), "Totals include unidentified U.S. 
spacecraft." Ibid. 

46 37 Department of State Bulletin 673 (1957) ; White House Press Release, 
October 9, 1957. 

47 Becker, "Major Aspects of the Problem of Outer Space," 38 id. 965 (1958). 



139 

also stated in connection with these announcements that the purpose 
of these satellites would be for scientific investigation." 48 

Before coming to any conclusions about the possibility that there 
may be customary international law governing certain uses of outer 
space, it will be desirable to summarize the practices and usages de- 
veloped during the IGY, as well as subsequently. The IGY and 
IGC-59, as previously indicated, were essentially the product of 
scientists organized through their own private professional organiza- 
tions. The latter were organized on a geographical rather than a 
national basis. In the United States the cooperating scientists were 
mobilized throught the National Academy of Sciences, and in the 
Soviet Union the same type of organization was employed. Nonethe- 
less, each of the cooperating national committees received substantial 
support of varying kinds from national governments. 

A formal treaty did not result from the multiplicity of such pri- 
vate agreements and practical acts flowing therefrom. In commenting 
on the totality of the IGY experience, Haley has said : 

Nevertheless, a valid binding world pact emerged from these 
acts of agreement and cooperation. The international pact, in 
written form, may be abstracted from the thousands of docu- 
ments and exchanges from which the living IGY evolved. There 
is nothing about a single formal treaty which makes it sacro- 
sanct or makes it even an essential source of international law. 
In many instances the principles set forth in the treaty itself 
may have been established in international law long prior to the 
signing of the formal document. A rule of international law 
does not receive its validity from its enactment into a legal in- 
strument, much of valid international law is not so enacted ; and 
there are rules of international law which are not valid, al- 
though enacted in such instruments. Enactments, therefore, is no 
objective criterion for the alleged validity of a rule of interna- 
tional law. 49 
There can be no doubt that national governments assumed that they 
had an interest in the launching and transiting of satellites during 
the IGY. It was the government of the United States, speaking 
through the office of the President, which announced the participa- 



48 lb id. This position was again stated on August 26, 1958 before the Ameri- 
can Bar Association ; Becker, "The Control of Space," 39 id. 418 (1958). 

49 Haley, "Recent Developments in Space Law and Metalaw — Work of Inter- 
national Groups," 24 Harvard Lata Record 3, Special Supp. (Feb. 7, 1957) ; 
Legal Problems of Space Exploration, 99-100 ; "Law and the Age of Space," 5 
St. Louis University Laiv Journal 8 (1958). 



140 

tion of "this country*' in the IGY satellite program. 50 Similar an- 
nouncements during the IGY were made well prior to launches by 
the Premier or other officials of the Soviet government. A number of 
public international agreements were entered into by the United 
States with other countries permitting the installation of tracking 
and other scientific equipment for the measurement of satellite orbits 
and to receive other scientific space data. 51 Further, the United States 
and the Soviet Union, as launching states, abstained from discussing 
with subjacent states the need for transit permits for orbiting satel- 
lites both during the IGY and subsequently. 52 

The rocket and satellite program of the IGY and IGC-59 cannot 
be stereotyped as either a wholly private or a wholly governmental 
activity. And even if it were considered as an entirely private activ- 
ity, it is clear that private policy making and the private formula- 
tion of international practices may be more influential when effected 
by private instrumentalities than when initiated by some govern- 
ments. 53 

The impact of the IGY experience and subsequent purely national 
practice, including occasional joint national efforts, has been ap- 
praised variously. So far as the relationship of the IGY to the devel- 
opment of a customary international law of outer space is concerned, 
there are varying views. Belying largely on the facts of govern- 
mental publicity given in advance of launches and the absence of 
national protest respecting orbital missions, Roberts has observed 
that "the only rational conclusion is that there is an implied agree- 
ment, at least for satellites launched during the IGY, that they 
would be allowed to circulate freely in outer space." 54 Yeager has 
pointed to the existence of a community of interests during the IGY, 
and has concluded that the self-imposed rules flowing from this ex- 
perience have a material bearing on the development of a customary 
law of outer space.' 



55 



50 "Plans for Launching of Earth-Circling Satellites," 33 Department of State 
Bulletin 218 (1955). 

51 Infra, pp. 79-80. 

52 Roberts, "Outer Space and National Sovereignty," 12 Air University Quar- 
terly Review 60 (Spring 1960). 

53 Miller, "The Adequacy of International Law in Meeting the Challenge of 
the Present Era," 8 Hoivard University Law Journal 93 (Spring 1962) has 
asked : "Who would dispute that Aramco is a more significant participant in 
the world power process than, say, Costa Rica or Mali?" Compare, Miller, "The 
Corporation as a Private Government in the World Community," 46 Virginia 
Law Review 1539 (1960). 

54 Roberts, supra note 52, at 59. 

55 Yeager, "A Code for a New Frontier," First Colloquium 119 (1959). 



141 

Objection has been raised by Smirnoff to drawing conclusions 
about the evolvement of a customary law from the IGY experience. 
In referring to the IGY "agreement" he has urged that such an 
"agreement can only partially be regarded as a juridical basis for 
flights in outer space or as a tacit consensus of all the nations of the 
world." 56 He bases this conclusion on two facts, namely, that at the 
time of the IGY, nations were psychologically unaware of the "im- 
minent dangers which space flights presented to mankind." 57 This 
position appears to be highly unrealistic and without substance. Sec- 
ondly, according to Smirnoff, "because of the legal vacuum in outer 
space, no one who might have wished to make a protest could find 
any firm and stable principles in the law upon which it could be 
based." 58 This conclusion has also been subject to attack and 
rejected. 59 

The unreality of the arguments raised by Smirnoff has become 
apparent in recent years. The uses of outer space at the present are 
more extensive than at the time of his writing in 1958. Nonetheless, 
with this knowledge and with perhaps a broader psychological aware- 
ness of space capabilities and practices, no official public protests 
have been made. At present the United Nations resolutions, the 
Charter, and international law generally are conceded to be appli- 
cable to outer space. Still at issue, however, is the extent to which 
IGY and subsequent practices have contributed to a customary inter- 
national law of outer space. 

Kopal cites two non- American authors in support of the view that 
"by the resolution of the International Geophysical Conference (sic), 
although it was a nongovernmental action, a legal basis for the 
launching of satellites has been established, as the attitude of sci- 
entific organizations was supported by the agreement of Gov- 
ernments." 60 Since governments entered into no express agree- 
ments on launching or orbiting satellites, Kopal appears to refer to 

56 Smirnoff, "The Need for a New System of Norms for Space Law and the 
Danger of Conflict with the Terms of the Chicago Convention," ibid, at 106 
(1959). 

57 Ibid. 

58 IUd. 

59 Kopal, "Two Problems of Outer Space Control," Third Colloquium 111, and 
footnote 9 at 112 (1961). 

60 Ibid., 110. He makes reference to Korovin's article "International Status 
of Cosmic Space," 5 International Affairs (Moscow) 53-59 (January 1959), 
Legal Problems of Space Exploration, supra note 9, Chapter I at 1062, and to 
the book of the Czechoslovak author, Outrata, International Law 228 (1960). 
He also cites Becker, supra note 47. Becker's position is much narrower than 
the one advanced by Kopal. Compare, infra, pp. 142-143. 



142 

the practices which developed during the IGY period. Kopal stated 
further ''The agreement on the IGY undoubtedly represents from 
the point of view of International Law an important element in the 
establishment of the legal regime of outer space." 61 He supports this 
conclusion on the ground that "there does not exist any legal norm 
forbidding the flights into outer space and in it for peaceful 
purposes."' C2 This reason is consonant with the broader princi- 
ples of international law set forth in the Lotus case. 63 Under its 
rationale international law does not in fact provide specific coverage 
of the totality of international relations to the extent that interna- 
tional law prohibits only such conduct as in fact is forbidden. This 
simply means that until the principles and rules of international law 
interdict certain acts that such acts may be engaged in. Since inter- 
national law does not interdict the peaceful uses of outer space, it is 
clear that it may be used for such purposes. Because of this overrid- 
ing approach to an understanding of the principles of international 
law, it is at least possible to agree with the conclusion reached by 
Kopal as expressed in these words: "Outer space * * * is and should 
remain freely accessible under equal conditions to peaceful research 
and exploitation by all countries." 64 Exploitation, of course, does not 
mean appropriation. Appropriation was specifically prohibited by 
paragraph l.(b) of the terms of General Assembly Resolution 1721 
(XVI). 65 Exploitation means the peaceful use of outer space for ben- 
eficial scientific and commercial purposes. 

Becker, writing during the IGY, noted the limited purposes of the 
satellite program, namely, that satellites would be used for "scientific 
investigation." 66 Observing that no nation had protested the 
announcements of the United States and the Soviet Union respecting 
the orbiting of satellites, he sought to clarify a misconception with 
respect to the rights of the United States. He stated that he had seen 
it stated several times that the United States does "not have any 
right to protest or take any action with respect to satellites because 



61 Ibid., 110. 

62 Ibid. 

63 The S.S. "Lotus" (France v. Turkey), P.C.IJ. Ser. A, No. 10 (1927); 2 
Hudson. World Court Reports 20 (1935). 

64 Kopal, supra note 59, at 110. This conclusion of course, is almost identical 
with Par. 1. of the statement of principles adopted by the General Assembly of 
the United Nations on December 20, 1961, 1721 (XVI). Annex 2, infra, pp. 
443-446. 

65 Annex 2, infra, pp. 443-446. 

66 Becker, supra note 47, at 965. 



143 

of the events relating to the International Geophysical Year." 67 He 
then indicated : 

It follows, therefore, that the only conclusion that can be 
reached with respect to the arrangements regarding the Interna- 
tional Geophysical Year is that there is an implied agreement 
that, for the period of the International Geophysical Year, it is 
permissible to put into orbit satellites designed for scientific 
purposes. Once the year is over, rights in this field will have to 
be determined by whatever agreement may be reached with re- 
spect to such objects. 68 
After making reference to national air space rights contained in the 
Chicago Convention of 1944, and after making a comparison with 
the development of rights in the Antarctic, he stated "So, too, in 
outer space the United States has already engaged in activities 
which, it could be asserted, have given to it certain rights as dis- 
tinguished from those states who have not engaged in such activities. 
Up to this time the United States has made no claims of sovereignty 
based upon such activities." 69 

From these observations it will be seen that the legal adviser to the 
Department of State acknowledged the presence of a process where- 
by international rights were being established. With the continua- 
tion of the IGY through the IGC and subsequent practices, IGY 
activities were enlarged and new and extended space programs came 
into being. However, the space programs continued to demonstrate a 
primary and fundamental interest in peaceful and scientific matters. 

Despite the presence of space devices in areas superjacent to na- 
tion-states, there have been no reported instances of official or equiv- 
alent public protests concerning the launching or the transiting of 
such spacecraft and space vehicles. This fact has been commented on 
by a very large number of the writers who have discussed space sub- 
jects since 1958. 70 In 1961 and again in 1962, John A. Johnson, Gener- 
al Counsel for NASA, referred to the fact that no official protests 

67 Ibid. 

68 Ibid. 

69 Ibid., 966. 

70 John Cobb Cooper, "Flight-Space and the Satellites," 7 International and 
Comparative Law Quarterly 82, 87 (1958). Feldman, "An American View of 
Jurisdiction in Outer Space," First Colloquium 47-48 (1959). Gatland, "Contri- 
bution," ibid., 63. Gorove, "On the Threshold of Space," ibid., 74. Smirnoff, 
"The Need for a New System of Norms for Space Law and Danger of Conflict 
with the Terms of the Chicago Convention," ibid., 106 (1959). Haley, "The Rule 
of Law in the Space Age," 37 Foreign Policy Bulletin 190 (1958). Legal Prob- 
lems of Space Exploration, supra note 9, Chapter I, 579. Cheng, "Problems of 
Space Law," Legal Problems of Space Exploration, ibid., 668. Gatland, "Sur- 



144 

had been made concerning the launching or orbiting of satellites. 71 



Among others this was also noted by Deputy Assistant Secretary of 
State Gardner, 72 and in 1963 by McDougal. 73 

No official protests have been filed by governments respecting the 
practice developed during the IGY, and followed every year there- 
after, of placing space satellites in orbit. In marked contrast has 
been the extensive diplomatic objection to overflights by convention- 
al aircraft and balloons. Force has been employed to prevent the 
overflight of U-2 type aircraft. 74 

Some writers have concluded from the fact that there have been no 
official protests resulting from the orbiting of satellites that there 
has been a tacit acceptance by states of the legal right for such space 
vehicles to be in orbit. 75 A key issue to be resolved is whether official 
tacit consent exists and, if so, what the legal consequences of known 
practice may be. This practice includes the orbiting of unmanned 
craft during the IGY and the subsequent transiting of manned craft. 
It covers vehicles used for a large variety of purposes, all of which 
have been employed for peaceful, that is, nonaggressive and benefi- 
cial purposes. 



veillance from Orbit," ibid., 671. Bastid, Cours de Droit International Appro- 
fondi 574 (1958). Lall, "Space Exploration — Some Legal and Political Aspects," 
Second Colloquium, 89 (1960). Vallardo, "The Law of Interplanetary Space," 
ibid., 159. Herter, "News Conference of April 8, I960," 42 Department of State 
Bulletin 643 (1960). Kopal, "Two Problems of Outer Space Control," Third 
Colloquium, 110 (1961). Martin, "International Space Law and Outer Space," 
ibid., 105 (1961). Leopold, "Cosmic Surveillance by Space Flight Momentum," 6 
Wayne Law Review 329-330 (1960). Lipson, "Some Problems of the Near Fu- 
ture and Possible Approaches," in Goldsen, ed., International Political Implica- 
tions of Activities in Outer Space 82 (1960). Roberts, supra note 52, at 59. 

71 Johnson, 55 Proceedings of the American Society of International Law 167 
(1961) ; "The Future of Manned Space Flight and the 'Freedom' of Outer 
Space," NASA News Release 6 (August 4, 1962). 

72 Gardner, "Law of Outer Space," 56 A.J.I.L. 798 (1962); Department of 
State Press Release No. 159, (March 10, 1962). 

73 McDougal, Comments at Conference on "Specific and Urgent Problems in 
the Law of Outer Space," Montreal, April 13, 1963, in Cohen, ed., Laiv and 
Politics in Space (1964) at p. 105. 

74 Lissitzyn, "Some Legal Implications of the U-2 and RB-47 Incidents," 57 
A.J.I.L. 135 (1962) ; Lissitzyn, "The Treatment of Aerial Intruders in Recent 
Practice and International Law," 47 A.J.I.L. 559 (1953). See Cheng, "Interna- 
tional Law and High Altitude Flights : Balloons, Rockets and Man-Made Satel- 
lites," Legal Problems of Space Exploration, supra note 10, Chapter I, 141 ; 
Roberts, supra note 52, at 58-59 ; Bloomfield "The Prospects for Law and 
Order," in Bloomfield, ed., supra note 22, at 172 (1962). 

75 Rivoire, "How to Introduce the Law into Space," Second Colloquium, 129 
(1960) ; Rauchhaupt, "World Space Law," ibid., 125. 



145 

In addition to the problem of the orbiting of artificial satellites, at 
heights and for the purposes presently employed, there is also the le- 
gal problem of the passage of such craft through traditional airspace 
while en route to and from the orbital altitudes. This raises the 
question, among others, of a right of innocent passage by satellites 
while possibly making a descent through the airspace of the non- 
launching state. 

The United Nations, through its reports and resolutions, to say 
nothing of its being a forum for the presentation of national points 
of view, has focused attention on the absence of official objection to 
orbital activity and to the concept of tacit consent. The first signifi- 
cant international analysis of the legality of space activity adopted 
the language of "permissibility" for the launching and orbiting of 
space vehicles. The report is noteworthy because of the early recogni- 
tion of such rights. 

Pursuant to Kesolution 1348 (XIII), 76 December 13, 1958, the 
General Assembly created anid Hoc Committee on the Peaceful 
Uses of Outer Space. The Committee concluded its work on June 25, 
1959, and filed an extensive report on July 14, 1959. 77 Pursuant to the 
above Resolution, paragraph 1 (d), the Committee was told to report 
on "The nature of legal problems which may arise in the carrying 
out of programmes to explore outer space." 78 In connection with the 
question of the freedom of outer space for exploration and use, the 
report stated : 

9. During the IGY 1957-1958 and subsequently, countries 
throughout the world proceeded on the premise of the permissi- 
bility of the launching and flight of space vehicles which were 
launched, regardless of what territory they passed 'over' during 
the course of their flight through outer space. The Committee, 
bearing in mind that its terms of reference refer exclusively to 
the peaceful uses of outer space, believes that, with this practice, 
there may have been initiated the recognition or establishment of 
a generally accepted rule to the effect that, in principle, outer 
space is, on conditions of equality, freely available for explora- 
tion and use by all in accordance with existing or future inter- 
national law or agreements. 79 



76 Documents on Disarmament, 19^5-59, Vol. II, 1305. Annex 7. 

77 U.N. Doc. A/4141 ; Legal Problems of Space Exploration, supra note 10, 
Chapter I at 1246. Annex 20, infra at 472. (Partial only) 

78 Ibid., 1. 

79 Ibid,, 23. 



146 

The Ad Hoc Committee's report was discussed by the First Commit- 
tee of the General Assembly on December 11 and 12, 1959. 80 Ambas- 
sador Lodge gave full endorsement to the report. He singled out the 
paragraph quoted above and stated that "his delegation supported 
the view expressed in * * * [it, and] that it was becoming a generally 
accepted principle that outer space was freely available for explora- 
tion and use by all, on an equal basis, in accordance with existing 
international law or agreements." 81 General approval of the report 
of the Ad Hoc Committee was voiced by representatives from Swe- 
den, Argentina, Cuba, the United Kingdom, Japan, Canada, and 
China. 82 

International lawyers soon commented on the development of a 
rule of international law looking toward the permissibility of peace- 
ful uses of outer space. Binet stated in 1959, after referring to the 
above quoted paragraph, that the Committee report "may be consid- 
ered as the first official pronouncement on at least one aspect of the 
principle of freedom of outer space." 83 Machowski has concluded 
that "In view of recent developments [1959], the permissibility of 
launching unmanned space vehicles cannot be objected to." 84 Kucher- 
ov in analyzing the 1958 views of the Soviet writer, Galina, has 
stated that Galina has "argued that since there is no international 
law covering the outer space, any government may indefinitely 
launch rockets or satellites into interplanetary space without asking 
permission of any other government." 85 In referring to the pre- 
viously quoted paragraph, Senator Thomas E. Martin has described 
the work of the Committee as "liberal and forward looking * * * ' 
and has declared that "This premise appears to have been supported 
by the fact that such space activity has been undertaken and that no 

80 U.N. Doc. A/C.1/SR.1079 and A/C.1/SR.1080. 

81 Ibid., 279. 

82 Ibid., 281-291. 

83 Binet, "Toward Solving the Space Sovereignty Problem," Second Collo- 
quium, 12 (1960). 

84 Machowski, "The Legal Status of Unmanned Space Vehicles," Second Collo- 
quium 117 (1960). 

85 Kucherov, "Legal Problems of Outer Space, U.S.A. and Soviet Viewpoints," 
Second Colloquium, 67-68 (1960). Kopal has provided the following translation 
of Galina : "The non-existence of international legal norms gives reason for the 
affirmation that any state can freely use the interplanetary space and launch 
there its satellites and rockets, without asking other states for a permission." 
Kopal, "Two Problems of Outer Space Control," Third Colloquium, 110 (1961). 
It should be noted that Korovin, whose writings are said to enjoy a higher 
authenticity than those of Galina, rejects the view that international law is not 
applicable in space, and supports the permissibility of the use of outer space 
for peaceful purposes. Kucherov, supra at 68. 



147 

nation has raised objection to the launching of space vehicles by an- 
other. Thus it would seem to me there has been acceptance of the 
principle of freedom of exploration and scientific observation in 
much the same manner as was agreed in Washington last December 1 
[1959] with respect to the continent of Antarctica." 86 

On the basis of all of the facts resulting from the total space ex- 
perience to date, it is now possible to reach some legal conclusions. In 
such an analysis the basic problem is to interpret in legal terms the 
quality of legal permissibility resulting from the absence of protest, 
or tacit consent to, respecting the launching and the orbiting of the 
type of spacecraft and vehicles actually placed in orbit. Has the 
clearly established practice been transformed into a customary rule 
of international law? The author believes that a rule of customary 
international law now exists making it permissible for satellites and 
other space instrumentalities to be used for peaceful, i.e., nonaggres- 
sive and beneficial purposes, and that so long as such devices are 
engaged in such uses that no state may validly object to their em- 
ployment. It is further believed that future commentators will agree 
with this judgment, and that ongoing practices will support this con- 
clusion. 

Support of this conclusion will also depend upon an adequate ap- 
praisal of the characteristics and nature of customary international 
law. A brief analysis of the significant indicia of customary interna- 
tional law follows. 

b. The Uniformity of Expectations 

The importance of custom as a source of international law was 
recognized by Grotius. In the Prolegomena, he refers to the law of 
nations as being founded on custom and the testimony of those who 
are skilled in it. 87 Other factors which must be weighed in determin- 
ing the existence of a customary law of outer space include: how it 
is created, its impact on conduct, the extent of its duration, the repeti- 
tive aspects of the practice, the nature of those who engage in the 
significant practices, the extent to which the practices are accepted, 



86 Martin, "International Space Law and Outer Space," Third Colloquium, 105 
(1961). Compare Galloway, "The United Nations Ad Hoc Committee on the 
Peaceful Uses of Outer Space," Second Colloquium, 38, 40 (1960). See Johnson, 
"Scientific Organizations and the Development of International Law," 54 Pro- 
ceedings of the American Society of International Law 206 (1960). 

87 Grotius, The Laws of War and Peace, Prolegamena, 23 (1625). (Classics of 
International Law, 1925). Custom was equated to tacit agreement by Grotius. 
He wrote, "When many at different times, and in different places, affirm the 
same thing as certain, that ought to be referred to a universal cause * * *" 
drawn either from the principles of nature or common consent. 



148 

the relationship between custom and new states, the problem of re- 
source states, vagaries of interpretation, and resistance to customary 
rules. 

What is custom and how is it created? Custom, as law, requires 
conformity to a given course of conduct. It depends upon the accept- 
ance by states that certain practices are legally binding, "opinio 
juris" and that there is a duty to conform. It derives from past 
international conduct during which an adequate consensus has been 
reached respecting acceptable behavior. 

Past conduct is relevant to customary international law since it 
assists in clarifying expectations for standardized future behavior. 
Conduct is not only a course of action but is also a claim that certain 
modes of behavior correspond with current community benefits and 
values. Claims are presented to the world community, based on the 
expectation of reciprocity, and when validated by the decision 
makers in the world community, become effective legal rules. 

It is the function of the community to determine the validity of 
claims. Therefore, the community accepts claims which accord with 
its needs and values, even though the claims may be advanced by but 
a single nation or other legal personality. In this connection it has 
been pointed out that "It is not of course the unilateral claims but 
rather the reciprocal tolerances of the external decision-makers 
which create the expectations of pattern and uniformity in decision, 
of practice in accord with rule, commonly regarded as law." 88 

Custom, being the product of common consent, is observable in the 
form of practice, usage, and positive acts. The actors, of course, must 
be equipped with the capability to engage in the specific conduct 
which is custom building. Thus, in outer space, custom is first of all 
the product of the conduct of what I shall call resource states, name- 
ly, those possessing the capabilities of putting into orbit, and 
maintaining in orbit, space vehicles. 89 However, since space vehicles 
use a dimension which is not suited to the occupation or complete 
control of the resource states, and since space activities are earth and 
man oriented, it can be stated that the nonresource states have a 
valid interest in space activities and may be entitled to be consulted 



88 McDougal, "The Hydrogen Bomb Tests and the International Law of the 
Sea," 49 A.J.I.L. 358, footnote 7 (1955). 

89 Compare Marshall, C. J., The Antelope, 10 Wheat 66 (1825). He based his 
conclusions on the practices of only those states "who possess distant colonies * 
* *" These states at that time sanctioned the slave trade, and it was only to 
the practices of a limited number of states that Marshall turned to ascertain if 
a customary rule of law existed. 



149 

in connection with the use by space vehicles of this environment. 90 
Their conduct, like that of the resource states, is an essential factor 
in the development of a customary law of outer space. 91 

The nonresource states have contributed to the development of a 
customary rule of law permitting the peaceful uses of outer space by 
their tacit consent to the orbiting of space vehicles. The fact that 
such states have not officially protested the pattern of conduct of the 
resource nations constitutes a silent acknowledgment of the develop- 
ment of a customary rule of international law. The legal equivalence 
of tacit consent and tacit agreement was accepted by Yattel in Le 
Droit des Gens. 92 Through the tacit acceptance on the part of nonre- 
source states of the conduct of resource states, they have helped in 
the creation of the customary rule of peaceful, that is nonaggressive 
and beneficial, uses of outer space. 

The validity of this conclusion must be tested against the other 
considerations mentioned above. It is generally agreed that a custom- 
ary rule of law depends upon the existence of a continuous situa- 
tion. The essential practice, usage, positive acts, and tacit consent or 
agreement, as measured by lack of protest, must meet the test of min- 
imum duration. 

The time span of minimum duration for space vehicles must take 
into account the tempo of modern times, and this is not uninfluenced 
by the speeds achieved and achievable by satellites which can now 
orbit the earth in approximately one hour. There is a general con- 
sensus that customary rules of international law may develop over 
quite short periods of time. It is also agreed generally that the recog- 
nition of the existence of a rule is more important than the mere 
lapse of time. 

The traditional view has been stated by Hackworth. He has writ- 
ten "Customary, as distinguished from conventional, international 
law is based upon the common consent of nations extending over a 
period of time of sufficient duration to cause it to become crystallized 
into a rule of conduct." 93 Several writers have noted that in fact 
customary law has in the past developed "slowly" 94 or "after a long 



90 The concerns of nonresource states for legal principles and rules for outer 
space activities have often been voiced at the United Nations. U.N. Doc. 
A/C1.PV 1296, 33-35. 

91 Jenks, "The International Control of Outer Space," Third Colloquium 6 
(1961). 

92 Vattel, Le Droit des Gens (1758) ; quoted by Bishop, International Law 19 
(2nded. 1962). 

93 I Hackworth, Digest of International Law 1 (1940). 

94 Jacobini, International Law 4 (1962). 



150 

historical process." 95 They, as well as others, point out, however, that 
customary international law has solidified quickly in some circum- 
stances. Customary international law developed slowly with respect 
to diplomatic privileges and immunities and the right of coastal fish- 
ing ships to be immune from capture during hostilities. 96 Moore sug- 
gested that the passage of 100 years in the instance of coastal fishing 
ships was "amply sufficient to have enabled what originally may 
have rested in custom or comity, courtesy or concession, to grow, by 
the general assent of civilized nations, into a settled rule of interna- 
tional law." 97 In the area of private law, it has also been accepted 
that the Law Merchant evolved slowly from practice to customary 
law. 

On the other hand, where simultaneous interests based upon mu- 
tual advantage have existed, practice has evolved very quickly into a 
rule of international law. This has been seen in the area of maritime 
rules of the road, 98 international air law, 99 the continental shelf, 100 ex- 
emptions from local jurisdiction of armed forces authorized to cross 
national boundaries, and where practice has been approved by the 
resolution of an international organization. 101 

Kunz also has observed that the length of time during which a 
practice is followed is not determinative of the existence of a custom- 
ary rule of international law. 102 Tunkin agrees with Kunz that it is 
not juridically necessary for a "customary rule to be 'old' or of long 

95 Starke, An Introduction to International Law 32 (3d ed. 1954). Dickinson 
has suggested that customary international law "grows glacially." Law and 
Peace 117 (1951). A German court in Lubeck v. Mecklenburg-Schiverin stated 
"If, as is generally recognized, no general rules can be drawn up as to the 
number of customary acts and their duration, one single case of usage does not 
suffice as a rule." The Court added that Triepel's comment to the effect that 
"under certain conditions one single act of international practice based on 
usage may suffice for a conclusion as to the existence of a rule of international 
law to be ventured" did not suggest that a single case of usage would normally 
constitute the basis for a customary rule of law. I (2) Zeitschrift fur 
Ausldndisches Offentliches Recht und Vblkerrecht 180, 183-186 (1929) ; trans- 
lated in I Hackworth, Digest of International Law 15-16 (1940). 

96 The Paquete Habana, 175 U.S. 677 (1900). 

97 1 Moore, A Digest of International Law 7 (1906). 

ss The Scotia, 14 Wallace 170, 188 (1871). 

99 Jacobini, supra note 94, at 4. 

ioo Young, "Sedentary Fisheries and the Convention of the Continental Shelf," 
55 A.J.I.L. 369 (1961) ; Josef L. Kunz, "Continental Shelf and International 
Law: Confusion and Abuse," 50 A.J.I.L. 823 (1956) ; Jacobini, supra note 94, at 
4. 

101 Starke, supra note 95, at 35, footnote 3. 

102 Kunz, "The Nature of Customary International Law," 47 A.J.I.L. 666 
(1953). 



151 

standing," 103 and then stated "Although in fact time plays a big 
part in the process of formation of a customary norm of internation- 
al law, juridically the element of time cannot in itself have a decisive 
significance. Depending on circumstances, a customary norm may take 
a long time to develop but may also be formed in a short period of 
time." 104 

In support of the practical needs of the world community, Wilson 
has rejected specific limitations upon the factor of duration. He has 
written that "If for a time international intercourse follows certain 
methods, these methods are regarded as binding in later intercourse, 
and departure from this procedure is held a violation of internation- 
al right." 105 The well known analogy between the formation of a 
path across a common and customary international law is particu- 
larly appropriate to practice, usage, and positive acts in space. In 
pointing to the fact that usage develops into custom, Pitt Cobbett 
wrote : 

At first each wayfarer pursues his own course; gradually, by 
reason either of its directness or on some other ground of appar- 
rent utility, some particular route is followed by the majority; 
this route next assumes the character of a track, discernible but 
not as yet well defined, from which deviation, however, now be- 
comes rare; whilst in its final stage the route assumes the shape 
of a well-defined path, habitually followed by all who pass that 
way. 106 

The illustration provided by Cobbett suggests that custom results 
from repetitive acts carried on at presumably rather frequent inter- 
vals. Although repetitive conduct provides notice to the world of a 
practical state of affairs, it is far from clear that either highly repet- 
itive conduct or such conduct over an extended period of time is 
required for the development of customary rules of international 
law. As has been previously suggested there is a body of opinion — 

103 Tunkin, "Remarks On the Juridical Nature of Customary Norms of Inter- 
national Law," 49 California Law Review 419 (1961). Compare, Krylov, "Les 
notions principales du droit des gens," 70 Recueil des Cours 441-443 (1947). 

104 Ibid. He cites in support of this conclusion Verdross, Volkerrecht 85 (4th 
ed. 1959). Kunz has characterized other parts of Tunkin's article as a "defense 
of the obsolete and fictitious construction of international customary law as 
pactum taciturn, a construction so dear to nationalistic writers, some time ago 
* * *" Kunz, "The Changing Science of International Law," 56 A.J.I.L. 498, 
footnote 34 (1962). 

los Wilson and Tucker, International Law 39 (8th ed., 1922). 

106 Cobbett, Cases and Opinions on International Law, 5-6 (3d ed., 1909). 

791-405—66 11 



152 

certainly not predominant — that custom must be the product of slow 
and repetitive conduct, well admixed with extended and complacent 
meditation. 

This myth has been invalidated by Fenwick who has pointed to 
the need to examine different types of conduct in different situations 
before forming judgments on the subject. In contrasting the develop- 
ment of rules during occasional periods of maritime warfare with 
frequent, if not daily, commercial activities, he has indicated the way 
in which customary law is developed. He has written : 

Many of these rules, such as those relating to maritime war- 
fare, had their origin in the practice of a single state which was 
able to impose its will until the rule came to be accepted by other 
states without protest. 

Other rules, notably those relating to commerce, had their ori- 
gin in the voluntary practice of a small group of states, and 
being found useful and convenient, were gradually accepted by 
other states until the established practice became a binding 
rule. 107 
The practice of orbiting space vehicles has been both continuous and 
uninterrupted since 1957. In view of these facts, it is noteworthy that 
Tunkin has observed that "Some authors are of the view that only 
continuity of international practice can lead to the establishment of 
a customary norm of international law. This is not so, however. It 
would be more correct to say that not one norm of international law 
has appeared as a result of international practice that had no 
interruption." 108 Tunkin qualified this conclusion somewhat 
by adding that discontinuity might — depending on the character of 
the modification of practice — affect the creation of customary inter- 
national law. In last analysis, however, in his view, neither the ele- 
ment of time nor the factor of continuous conduct play "a decisive 
role" 109 in the development of customary international law. 

The number of states engaging in a common practice also condi- 
tions the development of customary international law. It is not cor- 
rect to pass judgment upon the development of a customary interna- 



107 Fenwick, International Law 72 (3d ed., 1948). The influence of a single 
state, England, in the development of certain customary sea law rules is well 
known. The Scotia, 14 Wallace 170, 188 (1871). For a recent interpretation of 
the holding in the case of The Scotia, see Goldie, "Special Regimes and Pre- 
emptive Activities in International Law," 11 Infl & Comp. L. Q. 681-683 
(1962). 

los Tunkin, supra note 103, at 420. 

109 Hid., 421. 



153 

tional law for space based on the fact that there are but two major 
space states. While it is true that the United States and the Soviet 
Union possess advanced space technology and have engaged in suc- 
cessful space launches frequently since 1957, there are other factors 
to be taken into account. As has been pointed out, the United States 
has joined in launches with other countries. 110 Agreements have been 
entered into among European states for launching projects. 111 Inter- 
national agreements between the United States and many states per- 
mit such collateral and necessary activities as monitoring, data accu- 
mulation, and dissemination within such states. 112 The United States 
has made many offers of scientific cooperation with other states for 
cooperation in space activities. Many of such offers have been accept- 
ed and practical programs have been placed in operation. Further, 
the policies respecting the peaceful uses of outer space have been put 
forward by the launching states and have been based on the belief 
that such policies were to the advantage not only of the states having 
an advanced space technology but also beneficial for all states. The 
determination of international space policy has been the product of 
the community of states — not just those possessing advanced launch- 
ing and orbiting capabilities. 

It is true, nonetheless, that at the present there are but two launch- 
ing states which are well equipped with substantial space capabili- 
ties. These are the space resource states, and it is necessary to exam- 
ine their unique contributions to the development of a customary 
international law of outer space. Do their claims — in the form of 
demands presented to the world community — have a special quality, 
and do their practices largely condition the customary law of space? 
It is clear in the formulation of custom that claims of a unilateral 
character are advanced, and further, that decisions as to whether 
such claims will be recognized as custom depend not only upon the 
views of such states, but also upon the views of nonresource or non- 
claimant states. 

The role of resource states has been described for the law of the 
sea by Colombos. He has asserted that "Custom is the most impor- 
tant source of the international law of the sea and the usages of the 

110 See supra, pp. 78, 99. The United States has invited nations of the world 
"in advance of each launching of its meteorological satellites * * * to co-ordin- 
ate weather observations of their own with data obtained through simultaneous 
passes of the [United States] satellites above their skies." U.N. Doc. 
A/AC.105/PV, 18 (1962). By March, 1962, some thirty states had participated 
in such activities as a result of the invitations. 

111 Supra, pp. 17, 81-84. 
™ Infra, pp. 78-80. 



154 

great maritime States must therefore always exercise a weighty in- 
fluence on its development. There is good justification for such a 
claim on the ground that the Powers most concerned with a subject 
are able to understand it best." 113 It is only common sense to conclude 
that the resource states must initially establish usages and practices, 
and may establish customary procedures for themselves. The role of 
other states, although important, is initially subsidiary. While the 
claims of other states "may be of importance in the recognition of 
the genesis of a right * * *," such claims "cannot in themselves alone 
establish international customary law." 114 

While "common consent is the basis of all law," 115 and while cus- 
tom is "that line of conduct which the society has consented to 
regard as obligatory," 116 customary law is the ultimate product of 
the initial claims of resource states as determined to be binding by 
the world community. Thus, while unilateral acts may be required to 
start the process of customary law on its way, and may even thereby 
perhaps "create legally binding effects in international law," 117 it is 
through the processes of mutual accommodation or "mutual 
toleration" 118 based on the expectation of reciprocity that the 
true consensus of agreement is arrived at. 

Many sources must be considered in determining whether the accu- 
mulation of mutual tolerances in the area of outer space has in fact 
produced a customary international law of peaceful, that is, nonag- 
gressive and beneficial uses of outer space. These include: the state- 
ments of publicists who have examined the facts of space activity in 
a legal context; records of diplomatic instructions and negotiations; 
statements of diplomats who have participated in the formulation of 
legal rules; judicial acknowledgment based on evidentiary attesta- 
tion; international resolutions taken by international organizations; 
practices of international organizations, including both private and 
public bodies; municipal laws, treaties; and, of utmost importance, 
the actual existence of observable common conduct so broadly re- 
spected as to eliminate doubts as to its existence and as to the duty to 



113 Colombos, The International Law of the Sea 7 (4th ed. 1959). 

114 Liibeck v. Mecklenburg-Schiverin, I (2) Zeitschrift fur AusUindisches 
Offentliches Recht und Volkerrecht 180, 183-186 (1929), translation in I Hack- 
worth, supra note 93, at 16. 

115 1 Lauterpacht-Oppenheim, International Late 15 (8th ed. 1955). 

116 I Westlake, International Law 14 (2nd ed. 1910). 

117 Abi-Saab, "The General Principles of Law Recognized by Civilized Na- 
tions," 8 Howard University Law Journal 109 (1962). 

118 McDougal, "Perspectives for a Law of Outer Space," 52 A.J.I.L. 430 
(1958). 



155 

conform. The claims which take these forms "create expectations 
that effective power will be restrained and exercised in certain uni- 
formities of pattern." 119 Chief Justice Marshall, in deciding a case 
dealing with practical experiences of resource nations, concluded that 
"The modern usage of nations" may become law and that which is an 
established rule or practice is the basis for such law. 120 

It bears emphasizing that the pattern of conduct which leads to 
customary international law may be the conduct of different legal 
persons. Thus, in principle it may be the conduct of states, or of 
international organizations both public and private, and of individ- 
uals acting either personally or collectively. In the launching and 
orbiting of space vehicles, the conduct has been that of states, both 
individually and collectively, and of individuals — with the support 
of states, both individually and collectively. Examples of the latter 
include corporate or group activities by such organizations as the 
American Telephone and Telegraph Company, and the different pri- 
vate scientific groups during and after the International Geophysical 
Year. 

Maritime customs have been created by individual mariners. The 
Law Merchant was the product of individual traders. Early com- 
munications practices and usages of commercial companies were read- 
ily adopted by national governments because of the inherent practi- 
cability of their activities. 121 Usages perfected by private entities 
have been sponsored and carried forward by governments. Changes 
by both the private entities and by governments have led to suitable 
practices, and these have provided the pattern for the development 
of customary law. 122 This has been equally true for space vehicles. 



119 McDougal, supra note 88, at 356. Compare, Kunz, supra note 102, at 667 ; I. 
Hyde, International Law Chiefly as Interpreted and Applied by the United 
States 11 (2nd rev. ed. 1945) ; Kopelmanas, "Custom as a Means of the Crea- 
tion of International Law," Brit. Yb. Infl L. 127 (1937) ; Gianni, La Coutume 
en droit international (1931). 

120 United States v. Percheman, 7 Peters 51, 87 (1833) ; Compare Finch, Les 
sources modernes du droit international, 53 Recueil des Cours 581 et seq. 
(1935) ; Jaffe, "Reliance Upon Custom and General Principles in the Growth of 
Space Law," Military Law Review, Department of the Army Pamphlet 
27-100-20, 167 (April 1963). In this article Jaffe has sought to repudiate earlier 
views contained in his "International Law and Space Exploration," 6 St. Louis 
University Law Journal 68-69 (1960). 

121 DeWolf, "Telecommunications in the New World," 55 Yale Law Journal 
1281 (1946). Glazer, "The Law-Making Treaties of the International Telecom- 
munication Union Through Time and in Space," 60 Michigan Law Review 269 
(1962). 

122 Cobbett, supra note 106, at 6. 



156 

Practices similar to those conducted during the IGY have been con- 
tinued under governmental management. Modifications of private 
practices have been initiated. Old and ongoing private practices have 
merged with governmental practices. The latter have been creative 
and extensive. The resultant blend of private-public practices has 
fallen more and more under the management and control of govern- 
ments, so that what was initiated as a private scientific effort has 
become a full-fledged government concern with a very large part of 
planning, management, and operations now falling within the do- 
main of governments. 

A substantial product of this transitionary situation has been for 
practices — both early and late — to constitute customary legal claims. 
Through practice and usage, meeting the requirements set out herein, 
a customary rule of international law permitting the launching and 
orbiting of space vehicles of known and future types for peaceful, 
that is nonaggressive and beneficial purposes, has been established. 

This conclusion is based on the premise that resource states and 
interested nonresource states have given their approval to this view, 
and that this view has come "to command a general assent * * * '\ 123 

This raises the question of whether general assent or something 
more or less than such assent is required to establish a rule of custom- 
ary international law. Western authorities are of the opinion that 
general assent is all that is required to demonstrate the existence of 
a customary rule of international law. 124 Kunz holds that general as- 
sent, as demonstrated by general practice, rather than unanimous or 
universal practice, proves the existence of a valid rule of customary 
international law. 125 But, he also has concluded that "a mere majority 
of states is not enough." 126 Quadri has taken into account the qualita- 
tive condition of states in terms of the totality of power at their 
disposition in arriving at the conclusion that the political effective- 
ness of states, as brought to bear on usage and practice, largely affects 
the existence of customary rules of international law. States possess- 
ing a preponderance of force, that is, having the "will, decision, and 
action common to a definite group capable, if necessary, of imposing 



i 23 Ibid. 

124 Kelsen, Principles of International Law 313 (1952) ; 1 Guggenheim, TraitS 
de Droit International Public 49 (1953) ; Morelli, Nozioni de Diritto Interna- 
zionale par. 19 (3d ed., 1951) ; Basdevant, Regies generates du droit de la paix, 
58 Recueil des Cours 509 (1936) ; Sierra, Tratado de Derecho Internacional 
Publico 25 (2d ed. 1955). 

123 Kunz, supra note 102, at 666. 

126 Ibid. 



157 

its power * * * " are capable of maintaining valid customary legal 
rules. 127 

The Soviet writer, Tunkin, has distinguished between factual and 
juridical considerations as respects the development of customary in- 
ternational law. While acknowledging that the position of the 
"Great Powers in the first place, is of decisive significance in the 
creation of generally accepted norms of international law * * *" 128 he 
has also indicated that from a juridical point of view "the wills of 
the different states in the process of creation of norms of internation- 
al law are equivalent to each other." 129 He then argues against the 
universality of application of customary legal rules arrived at only 
by a preponderance of resource states. It is his contention that custom- 
ary norms of international law "being a result of agreement among 
states, the sphere of action of such norms is limited to the relations 
between the states which accepted these norms as norms of interna- 
tional law, i.e., the states participating in this tacit agreement." 13 ° 
His conclusion is entirely too narrow, and fails to take into account 
the fact that customary international law has always been a formi- 
dable and valuable device to bind a state even against its will in some 
situations. His argument suggests that general customary interna- 
tional law or universal customary international law can only be the 
product of either general or universal consent of nations. 

A quantitative vote built on Tunkin's vastly oversimplified prem- 
ises would destroy the utility of customary international law and 
stagnate the totality of international law. Both practical necessity 
and moral responsibility require only that international customary 
law be practiced and accepted by resource states generally and not 
universally. It is always subject to the community test of reason- 
ableness. So far as the peaceful, i.e., nonaggressive and beneficial, use 
of outer space is concerned, the resource states constitute the select 

127 Quadri, he fondement du caractere obligatoire du droit international pub- 
lic 80 Recueil des Cours 583, 625 (1952). Compare Quadri, Droit international 
cosmique, 98 Recueil des Cours 524-539 (1959). 

128 Tunkin, supra note 103, at 427 ; Korovin has stated that for space law this 
must be "the U.S.S.R. and the U.S.A. — those most concerned with the prob- 
lems." Conquest of Outer Space 94 (1959). Quoted in Soviet Space Programs, 
supra note 10, Chapter I, at 217. However, in 1960 the Soviet writer, Zhukov, 
stated that the United Nations "must take the necessary measures to ensure 
that the conquest of outer space serves only peaceful purposes." Zhukov, "The 
U.N. and the Peaceful Use of Outer Space," 1960 Soviet Year-Book of Interna- 
tional Law 186 (1961). Compare Zhukov, "Practical Problems of Space Law," 
International Affairs (Moscow) 27-30 (May 1963). 

129 Ibid. 

"0 Ibid., 428. 



158 

forum in which the rules are created and implemented. It is, nonethe- 
less, important to note that through the resolutions of the United 
Nations General Assembly, a vast majority of the world's states, and 
all of the members of the UN, have subscribed to the principle of the 
peaceful uses of outer space. 

The emerging customary rules of international law applicable to 
outer space apply with equal force to all members of the world com- 
munity. The customary rule of peaceful, i.e., nonaggressive and ben- 
eficial, uses of outer space has come into being simultaneously with 
the death of empires and with the creation and proliferation of new 
states. Since they by their conduct have accepted this rule, the fact 
that some of these states have made unspecific criticisms of the role 
of customary international law in effect at the moment of their being 
accepted into the world community is lacking in significance. It 
should, perhaps, be noted in passing that several countries, particu- 
larly the Soviet Union and some of the new nation-states which have 
not yet overcome the forces of excessive nationalism, have urged that 
the only true source of international law is the express or written 
agreement. From this unacceptable premise all kinds of weird con- 
clusions have been drawn, including the false concept that new states 
are not accountable to customary law created prior to their existence 
and that practices must be accepted universally before customary 
rules of international law can exist. 

Tunkin has set forth the Soviet viewpoint that customary interna- 
tional law is subject to "reservations" on the part of new states 
which "have the juridical right not to recognize this or that custom- 
ary norm of international law." 131 From this he has argued that 
"agreement between states lies at the basis of the process by which 
customary norms of international law are created." This condition is 
attributed by him to the existence of states based on different and 
opposed social systems. On these grounds he has concluded that it is 
not possible to create "norms of law binding upon the states of both 
systems, except by agreement between them based on equality." 132 
This observation reflects the Soviet preference for specific written 
consent as a condition precedent to the existence of legal obligations. 

The current Soviet dissatisfaction with customary international 
law, as well as some treaty law, has been noted by Crane. He has 



131 Ibid. Compare Lissitzyn, "The Soviet View of International Law," 14 Na- 
val War College Review 1 (1961). 

132 Tunkin, supra note 103, at 430. So far as some of the new states are 
concerned "The Soviet Union's outspoken attitude toward custom has provided 
them with a powerful example." Abi-Saab, supra note 117, at 106. 



159 

stated that Soviet writers, such as Korovin, Kozhevnikov and Zado- 
rozhniy, have held that customary international law "must represent 
the wills of the socialist countries in order to be binding," and that 
this fact is determined by Soviet "consent." 133 Crane has concluded 
that Soviet resistance to customary international law is based on the 
view that "an absolute agreement of wills between socialism and cap- 
italism is impossible anyway." 134 While the Soviets acknowledge 
the existence and importance of international law, they regard it as 
being in a condition of progressive transformation to the end that it 
will more proximately serve the political goals of the Soviet state. 135 

Lurking in the not too distant background of Soviet thinking on 
the development and force of an international customary law of 
outer space is the matter of security and self-defense. As a closed 
society the Soviets have long maintained an almost irrational con- 
cern for secrecy and for the elimination of information gathering 
concerning their activities. It has been in this light that in July 1960, 
Soviet writers alleged that the United States was trying to develop 
evidence of "customary norms of law" so that the United States 
might be able legally to employ reconnaissance satellites. 136 It has 
been the contention of Soviet officials and writers that the use of 
such satellites would be provocative and aggressive conduct. The 
United States has maintained such uses to be peaceful, i.e., non- 
aggressive and beneficial. 137 

Teeming difficulties exist in relying upon customary international 
law as an effective source in the ongoing legal process. The judicial 



133 Crane, "Soviet Attitude Toward International Space Law," 56 AJ.I.L. 719 
(1962). The three Soviet authors published their views in "Peaceful Coexist- 
ence and International Law," Isvestiya, April 18, 1962, p. 5. 

134 Crane, iUd., 719. 

135 McWhinney, " 'Peaceful Co-Existence' and Soviet- Western International 
Law," 56 AJ.I.L. 958-962 (1962) ; Soviet Space Program, supra note 10. 
Chapter I, at 191-192. 

136 Bloomfield, supra note 22, at 172. Compare Zhukov, supra note 128, at 
27-30. 

137 See pp. 95-103 supra. According to former Senator William Benton, he was 
informed by Premier Khrushchev in May 1964 that "If you wish, I can show 
you photos taken from outer space." The clear implication was that such 
photos had been taken by Soviet space vehicles. Los Angeles Times, May 30, 
1964. By October 1964, news releases from Washington credited the United 
States "defense experts" with the belief that Soviet Cosmos type satellites were 
able to make reconnaissance type photographs at heights ranging from about 
120 to nearly 300 miles. Los Angeles Times, Oct. 19, 1964. 



160 

test of constant and uniform usage was applied in the Asylum Case 
in 1950. The Court said: 

The party which relies on custom * * * must prove that this 
custom is established in such a manner that it has become bind- 
ing on the other party * * * that the rule invoked * * * is in 
accordance with a constant and uniform usage practiced by the 
States in question, and that this usage is the expression of a 
right appertaining to the State granting asylum and a duty in- 
cumbent on the territorial state * * *. 138 

In that case the contentions based on the alleged existence of a 
customary rule were rejected. The cumulative effect of the foregoing 
factors produced that result. The Court thought that the facts dis- 
closed too much uncertainty and contradiction in the exercise of the 
practice. It was also held that there had been too much fluctuation 
and discrepancy in the practice. Many differences of opinion over an 
extended period had been voiced by officials, and no clear pattern was 
identifiable. According to the Court, existing international agree- 
ments failed to establish a required pattern. Earlier political expe- 
diency had too largely infiltrated the claims of the decision makers. 

The Court's decision reflected the two major difficulties with re- 
spect to custom, namely, "(1) the difficulty of proof, and (2) the 
difficulty of determining at what stage custom can be said to become 
authoritative." 139 Kunz has emphasized the latter, and has noted 
that "here is the difficult field of distinguishing between a new 
customary norm which has come into existence, and mere proposals 
for or tendencies toward creating such new norm." 140 

In addition to the defects as to content and method of proof, 
which characterizes customary law as uncertain law, it usually 
suffers by reason of relatively slow growth and reliance upon prece- 
dent. Usually growing fairly slowly it may be difficult for it to keep 
abreast of the tempo of the times. "Being based upon precedent, [it 
has been] * * * unable to fill up the gaps in international law as these 
were disclosed by the development of clearer conceptions of interna- 



138 Asylum Case [1950] I.C.J. Rep. 276-277 ; Haley, in "Recent Developments 
in Space Law and Metalaw — Work of International Groups," supra note 10, 
Chapter I, at 102-106 points out that prior to the development of efficient 
communications it was difficult to know how extensive common practices ac- 
tually were. 

139 Cobbett, supra note 106, at 6. 

140 Kunz, supra note 102, at 668. 



161 

tional justice." 141 Jurists, themselves, have been at fault in not dis- 
tinguishing clearly enough between customary rules which were "gen- 
erally adopted by the nations as a body and those to which two or 
more nations, their own included, have given their consent." 142 
Further, this law is "highly suspected by the new nation-states who 
have had little direct participation in the past uniformities of beha- 
vior from which implicit policies are sought." 143 

McDougal and Feliciano note additional difficulties with custom as 
a source of international law. They point out that it provides "few 
clarifications in terms of detailed principles of content and proce- 
dure * * * ", 144 While agreeing that customary law is not based on the 
principle of unanimity, they also point to the vagueness of the rules 
which have been created. This of necessity leads to "many vagaries 
in interpretation * * * ". 145 This in itself is not a unique restriction on 
the customary law of outer space. All law, and especially that por- 
tion dealing most intimately with principles, is subject to the vaga- 
ries of interpretation. Further, the "soft" law of custom, as opposed 
to the "hard" law of treaties, particularly lends itself — through in- 
terpretation — to the dynamics of the space complex. 

Another serious indictment of the customary process is its relative 
inability to deal with certain types of situations. The process permits 
forms of conduct but does not cope adequately with the need to 
negate unpracticed conduct of an antisocial nature. Thus, although 
the uses of space for purposes of contamination or as an environment 
for weapons of mass destruction are universally condemned, custom 
is not so effective in inhibiting unpracticed conduct as in upholding 
practiced conduct. Nonetheless, it must be argued that the tacit 
agreement of resource states not to engage in such space practices as 
these may be creative of an international customary legal duty to 
abstain from such uses. Explicit treaty arrangements provide a prac- 
tical form for such law. 

Perhaps the gravest problem is to ascertain when practices and 
usages, which have had no binding legal obligation, are transformed 
into obligatory legal rules of customary international law. Since 
custom does not speak for itself, it has long been the duty of legal 

141 Fenwick, supra note 107, at 72-73. There would not be, for example, the 
development of customary international law prohibiting the contamination of 
outer space or prohibiting the orbiting of weapons of mass destruction. Its role 
is more to authorize than to prohibit conduct. 

142 IUd., 74. 

143 McDougal and Feliciano, Law and Minimum World Public Order 363 
(1961). 

144 IUd. 

145 IUd. 



162 

commentators to acknowledge the existence — thereby confirming its 
past factual existence — of customary legal rules. Customary law 
must be promulgated by the expert. The scholar has had the duty of 
examining the evidence — using materials from whatever quarter 
available — bearing upon the existence of the customary rule. In such 
a process the evidences of customary law have often been hardly 
distinguishable "from the customs themselves which made up the 
law." 146 

In making the required tests to determine the existence of a custom- 
ary rule of law, the scholar is confronted by two major concerns. 
He must first be convinced of the existence of the fact of customary 
law. International morality and courtesy typically precede interna- 
tional practice. At the point where they have been absorbed by 
"opinio juris," there is no longer the problem of the existence of cus- 
tom. Rather, it has now become a separate problem of identifying an 
existing custom with satisfactory evidence. Evidence, in this situa- 
tion, becomes a "matter of observation and appreciation, and not of 
logical and mathematical decision, just as is the answer to the ques- 
tion, How many grains make a heap?" 147 The conduct is a matter of 
fact, not of theory, and the role of the lawyer then is simply to 
acknowledge that "the rule which may be abstracted from such con- 
duct is a rule of customary International Law." 148 

Secondly, the scholar must be aware that although international 
morality and courtesy may precede the acceptance of the customary 
rules of international law, such law need be neither just nor 
humane. 149 However, in promulgating the existence of customary 
international law the scholar need not be deterred by the fact that 
the customary rules may suit the higher needs of the world commu- 
nity, as, for example, the rule that outer space shall be used only for 
peaceful, i.e., nonaggressive and beneficial purposes. That the scholar 
has some election is attested to by the fact that the rules do not speak 
for themselves and by the further fact that practices may and do 
vary from those with a high and a low content in justice and human- 
ity. This has been clearly indicated by Fenwick in calling attention 
to the role of Grotius in setting forth customary rules of internation- 
al law, and whose views served the needs of the social complex. Fen- 
wick has said : 

The great treatise of Grotius would have fallen short both of 

the author's high purpose and of the world's needs had he been 

146 Fenwick, supra note 107, at 73. 

147 Lauterpacht-Oppenheim, supra note 115, at 17. 
14 » Ibid., 27. 

149 Kunz, supra note 102, at 666. 



163 

content to do no more than record the actual practices of na- 
tions. The urgent task, as he felt, was not to set forth the uncer- 
tain and unjust usages of the time, but to lay down better rules 
of conduct based upon inferences from moral principles acknowl- 
edged in the abstract but consistently violated; and his appeal 
from existing practice to the ideal conduct was so forcible that 
his words became authoritative and statesmen relied upon his 
judgments as the correct inference from accepted general 
principles. 150 
The development of a customary law for outer space has been eased 
by the fact that there have been only consistent practices whereby 
outer space has been used for peaceful purposes. It is, however, per- 
haps fortunate that the customary law of outer space relating to 
peaceful, i.e., nonaggressive and beneficial uses, can look to both es- 
tablished usages and also to broader and more fundamental prin- 
ciples, namely, the extended moral and social values to which the 
rule so measurably contributes. 

While nation-states have not denied the existence of a customary 
rule of international law requiring that outer space be used for 
peaceful purposes, and while such states have acted continually in 
support of this rule, several unofficial commentators have suggested 
the possibility that such a customary rule does not exist. It should be 
noted at the outset that these scattered views generally have come 
from authors who maintain that formal or written international 
agreements constitute a preferred source of international law. Such 
authors generally are the spokesmen for a few of the newly independ- 
ent states. In the latter category are the writings of Abi-Saab who 
has urged that "Custom as a source of international law is generally 
on the decline." 151 The socio-economic orientation of such writers 
have been attuned occasionally to Soviet protestations. Thus, Abi- 
Saab has objected to an extended role for customary international law 
because it "developed in a social milieu radically different * * *" 152 
from that of the newly developing states. Such writers also have 
sought to base their opposition to custom on the fact that custom has 
borrowed from legal systems other than those which are being exper- 
imented with in some newly independent states. A further objection 
to custom, as previously indicated, is that it minimizes extreme no- 
tions of sovereignty fostered in the Soviet Union and in states fall- 
ing under the latter's political influence. 

150 Fenwick, supra note 107, at 73. 

151 Abi-Saab, supra note 117, at 106. 

152 Ibid, 



164 

At least one author has come to conclusions respecting the legal 
meaning of the IGY experience different from those arrived at in 
this study. 153 Writing before the IGY had been concluded, Gorove 
has sought to negate the intimation of such writers as John C. 
Cooper 154 that "a broad rule of international law has already been 
created." 155 Because his views were expressed so early, Gorove 
failed to have the benefit of the total IGY effort and the continua- 
tion of its essential elements after 1958. Thus, his conclusion that the 
IGY failed to produce any "authoritative prescriptions" 156 can be 
largely discounted. 

The absence of official protests respecting the satellite practices 
inaugurated in 1957, is clearly one of the major factors in the estab- 
lishment of a customary rule for space vehicles. However, the effect 
of a customary rule of international law may always be somewhat 
influenced by future and as yet unknown national proclamations. 
The significance of such a contingency has been taken into account 
by Kunz, who has said : "Protests by other states or declarations that 
they, even if submitting to this practice, do so only ex gratia; pro- 
tests against the norm on which an international decision is based, 
even in carrying out this decision, prevent the coming into existence 
of a new norm of customary international law." 157 Kunz places em- 
phasis on the condition of universality of acceptance rather than on 
the practical fact of common practices of resource states. 



153 Supra, pp. 80, 127-147. 

154 Cooper, "Flight-Space and the Satellites," 7 InVl & Comp. L. Q., 82, 87 
(1958). 

155 Gorove, "On the Threshold of Space: Toward a Cosmic Law," First Collo- 
quium 74 (1959). 

15G Ibid., 76. It is submitted that the conclusion of Leopold who wrote in 1960 
is to be preferred. He stated that "the repeated unprotested passes of orbiting 
space craft launched by one state, over the domains of other states during the 
past two years, seems indicative that at least a customary rule of international 
law has been generated to the effect that irrespective of the altitudes to which 
the sovereign territorial air space of surface states may ultimately be codified 
as extending, orbital flight should be considered as exempt therefrom, i.e., or- 
biting vehicles and vehicles in powered flight characterized by momenta greater 
than the orbital momentum could be considered as enjoying rights of transit 
analogous to easements or rights-of-way, over the domain of other states." 
Leopold, "Cosmic Surveillance by Space Flight Momentum," 6 ^Yayne Law Re- 
view 329-330 (1960). This comment must, of course, be restricted to peaceful, 
i.e., nonaggressive and beneficial uses. 

157 Kunz, supra note 102, at 667. Kunz does not cite any authority for this 
proposition, although the observation represents the state's interest in protect- 
ing its sovereign choices. 



165 

Since, as has already been pointed out, universality is not the test 
for the establishment of a customary rule of international law, and 
further, since it is true, as McDougal has urged, that the ultimate 
function of international customary law is to bind states against 
their objections, there would not seem to be any difficulty in conclud- 
ing that international customary law can tolerate some affirmative 
opposition and still be a binding source of law. At this time, in the 
absence of official protests regarding satellites presently in orbit, the 
problem has not arisen as to whether a customary rule of interna- 
tional space law can bind a state against its consent. The ongoing 
space practices and usages have been so generally accepted and con- 
formed to as to permit the international community to disregard the 
prospective objections or claims of a dissident minority. It may be 
asserted that space practices and usages have hardened to the point 
that there now exists a customary rule of law requiring that outer 
space be used for peaceful, i.e., nonaggressive and beneficial, pur- 
poses. 

This discussion to this point has been concerned exclusively with 
the peaceful uses of outer space and has not been concerned with the 
fact that while a customary international law for peaceful uses was 
being developed that other rules of customary international law were 
also emerging. A collateral development has to do with the problem 
of sovereignty over the airspace and outer space. Two discerning 
writers have endeavored to appraise the condition of lack of protest, 
or tacit consent respecting peaceful uses, in terms of lack of national 
sovereignty over outer space. 

Goedhuis, writing in 1962, referred to the American Bar Founda- 
tion Eeport prepared by Lipson and Katzenbach. 158 According to 
Goedhuis, the conclusion that "the failure of States to register formal 
protests against space activities is reasonably — though not conclu- 
sively — to be construed as an acknowledgment that territorial air 
space does not extend to the perigee of any of the satellites so far 
launched * * *," is n °t convincing. 159 

Goedhuis has endeavored to distinguish between the fact that sat- 
ellites do orbit freely and the legality of such action. Thus, while he 
has admitted that the current practice is based on enlightened self- 
interest, and that tacit consent does result from the permissive action 
presently engaged in, yet for him this is not enough. First he has 



158 Legal Problems of Space Exploration, supra note 10, Chapter I, at 779, 
784-787. 

159 Goedhuis, "Some Trends in the Political and Legal Thinking on the Con- 
quest of Space," 9 Netherlands Law Review 122 (1962). 



166 

pointed to the failure of states to give reasons for permitting satel- 
lites to orbit freely in superjacent areas. Secondly, he has noted the 
fact that states have not arrived at an agreement as to the upper 
limits of their sovereignty in airspace. Third, he has made the point 
that satellites operating at perigee levels are situated in an environ- 
ment where there is at least some air, however minute such particles 
may be. Finally, he has asserted in effect that states may change 
their positions, and at some future, but undisclosed date, a state may 
protest against the presence of superjacent satellites on grounds of 
sovereignty. 160 

With respect to national protests he has claimed that "The present 
Russian lack of protest against the American reconnaissance satel- 
lites is most probably due to a variety of reasons amongst which are 
the present unavailability of effective means to stop them, the danger 
of security not being thought to have been such as to call for a pro- 
test, and last but not least to the advantage of mutual toleration at 
the present moment." 161 

Goedhuis has recognized that he must assume the burden of negat- 
ing the effect of the resolutions adopted at the United Nations if his 
argument is to receive any credence. Thus, the provisions of the Gen- 
eral Assembly's unanimously adopted resolution on "International 
Co-operation in the Peaceful Uses of Outer Space" 1721 (XVI), De- 
cember 20, 1961, setting forth the principle that outer space is free 
for exploration and use by all states, is characterized as an "equivo- 
cal passage." He then asserts that it would be "erroneous" to con- 
clude as a result of the Resolution that "a rule of international 
customary law of freedom of passage of foreign satellites through 
national airspace already exists * * * ". 162 

Goedhuis' error lies in assuming that there is a legal relationship 
between areas where air may be found and the use of this as a de- 
marcation between outer space and airspace. Such a line, if and when 
drawn, will not be the product of purely scientific considerations, but 
rather will be very largely the product of political-legal factors. 163 
However, were one to assume, with Goedhuis, that satellite perigee 
levels and landing patterns fall into an area or within a zone in 
which a minute amount of air may be found, this could not negate 



"o Ibid., 122-123. 

161 IUd., 124-125. 

162 Ibid., 125. Goedhuis relies on B. Cheng, "United Nations and Outer Space," 
Current Legal Problems, (n.p.) (1961). 

163 Johnson, "The Future of Manned Space Flight, and the 'Freedom' of Outer 
Space," NASA News Release 11-14 (August 4, 1962). 



167 

the validity of the practices and the claims advanced and accepted in 
the international community since 1957. 

These claims have been formalized by national acknowledgments 
of known practices and by the force of the United Nations discus- 
sions and resolutions. For example, Secretary of State Rusk in testi- 
mony before the Senate Committee on Foreign Relations on August 
6, 1962, in referring to UN Resolution 1721 (XVI), declared that 
through it "a firm foundation of fundamental principle has been laid 
* * * " for the law of outer space. In his view the Resolution consti- 
tuted a "basic source of legal principle," and though he noted that 
the Resolution merely commended the principles to member states, 
"the United States takes the position that these principles are pres- 
ently the law; the unanimous action of the General Assembly in 
adopting the resolution, as action by the governments of the world 
assembled, confirms this view." 164 

In view of such unequivocal declarations on the part of the major 
resource state in the field of outer space, it would appear that fears 
on the part of Goedhuis, that the requisite conviction that the peace- 
ful uses of outer space had become a legally binding practice, have 
little merit. 

Significant conclusions have been advanced by Johnson in his anal- 
ysis of space practices as related to both the problem of sovereignty 
and the problem of peaceful uses. His analysis does not take into 
account UN Resolution 1721 (XVI) since his position was stated in 
April, 1961, prior to the action of the UN. Johnson, after referring 
to three and one-half years of space activities — including launching, 
orbiting, and return — on the part of the resource states, asked what 
legal conclusions could be drawn from the fact that "No permission 
was sought in advance, none was expressly given by any state, and 
not a single protest has been registered by any other states." 165 As 
general counsel of the National Aeronautics and Space Administra- 
tion, his views are most significant : 

Alternative conclusions, I believe, can be drawn. The first of 
these is that territorial sovereignty does not extend as high as 
the minimum altitude at which the orbiting of these satellites 
has taken place (about 100 miles) and that no state has the right 



164 Rusk, "Foreign Policy Aspects of Space Communications," 47 Department 
of State Bulletin 318 (1962). 

165 Johnson, "Remarks," Proceedings of the American Society of International 
Law 167 (1961). 



791-405—^66 12 



168 

to exclude other states from the use of any part of 'outer space' 
above this altitude. The alternative theory is that, so long as the 
upward limit of territorial sovereignty is not defined by explicit 
agreement, the practice of the past three and a half years serves 
only to establish a right of passage for spacecraft of a scientific, 
exploratory, and non-military nature; but that the claim of ter- 
ritorial sovereignty might still legally be invoked to exclude 
other types of spacecraft serving other purposes. 

At most, the practice of the past three and a half years leads 
to the conclusion that territorial sovereignty does not extend 
higher than the point at which the free orbiting of a useful 
earth satellite can occur. It is not necessary to conclude from 
this that territorial sovereignty should extend that high. 166 

Johnson also clearly stated the relationship between the doctrine 
of national sovereignty and the right to take action of a defensive 
nature. He said: 

It should be noted that the upward delimitation of territorial 
sovereignty does not imply that activities which threaten peace 
and security are to be permitted in outer space, nor does it mean 
that a state would not be free to take legitimate self- defensive 
measures in outer space. The extent of territorial sovereignty is 
not the criterion for such matters. 167 

Johnson's comments highlight the interrelationship between na- 
tional self-defense in all environments, the concept of sovereignty as 
related to security, the fact that there is no rule of law separating 
airspace from outer space, 168 and the need for mankind to benefit 
from the free and peaceful launching, orbiting, and return of useful 
satellites. These factors have affected the development of a rule of 
customary law calling for the peaceful uses of outer space. On the 
basis of experience observed from the vantage point of 1963, the first 
of Johnson's tentative alternatives needs to be amended slightly. 
With the current emphasis on free and peaceful uses, rather than 
sovereign zones, his reference to "use" only appears to be too narrow. 
It is submitted that nonpeaceful uses of space devices at any altitude, 
being in conflict with the rule that peaceful, i.e., nonaggressive and 
beneficial, uses may be engaged in, will be considered to be illegal. 



* 66 Ibid. 

167 Ibid. 

168 Schachter, "Who Owns the Universe?" in Ryan, ed., Across the Space 
Frontier 130 (1952) ; Roy, "Remarks," 50 Proceedings of the American Society 
of International Law 94-96 (1956) ; Lipson, "Remarks," 55 ibid. 184-185 
(1961). 



169 

Johnson's alternative theory also has much to commend it. How- 
ever, in seeking specificity he has employed the term "non-military 
nature" without defining it to mean nonaggressive military activities. 
With this modification the alternative theory conforms to current 
usages and has been incorporated into the customary international 
law of outer space. Both alternatives call attention to the need for 
clarification of what is meant by "peaceful uses." 

Reassessing the practices of states in outer space on August 4, 
1962, Johnson arrived at a conclusion which is implicit in what has 
just been stated. He noted the need to formulate some kind of "inter- 
national control directed toward specific space activities, regardless 
of the location of their occurrence." 169 In arriving at such control 
Johnson urged the establishment of a realistic ceiling for "the 
'closed' space which is under the exclusive unilateral control of each 
underlying State. If we are serious about the freedom of space explo- 
ration, we must not underestimate the area of 'free' space which is 
required for that activity." 17 ° 

After referring to the practices of nations from 1957 to August of 
1962, Johnson arrived at a single legal conclusion, thereby making 
an election between the various possibilities suggested by him early 
in 1961. This conclusion, which was patently influenced by both repet- 
itive space practice and usage and by the United Nations Resolution 
of December 20, 1961, was that "the nations have not regarded terri- 
torial sovereignty as extending as high as the point at which the 
orbiting of these satellites has occurred." 171 

From this analysis it will be seen that practices of states which 
have led to the creation of a customary rule of international law of 
the peaceful, that is, nonaggressive and beneficial uses of outer space, 
have also contributed very materially to the establishment of a cus- 



169 Johnson, "The Future of Manned Space Flight and the 'Freedom' of Outer 
Space," supra note 71, at 5. 

170 IMd., 3. 

171 Ibid., 6. The early views on the most desirable specific elevations separat- 
ing sovereign from nonsovereign areas were in wild discord and have left no 
lasting impression on the substantive law of outer space. Major opinion pres- 
ently suggests that a line between sovereign control over airspace and the 
free use of outer space for peaceful purposes should be at a relatively low 
elevation — from twenty-five to one hundred miles above the surface. Arguments 
for a low boundary are based on the need to provide suitable freedom to 
descending vehicles, reduction of disputes, facilitation of evidentiary accumula- 
tion, general ease of management for hybrid type craft, and the increasing 
recognition that any such boundary has little or no relationship to the mainte- 
nance of international peace and security or national self-defense. 



170 

ternary rule of free movement in certain areas superjacent to a state. 
In arriving at a conclusion on this subject it is important to note 
that the extent of sovereignty will never depend upon artificial,, 
scientific, or arbitrary views as to a line of delimitation between air- 
space and outer space, but will rather depend, as suggested earlier,, 
on political-legal considerations as affected by considerations of in- 
ternational peace and security and national defense. Although there 
is no doubt that a state may protect itself in areas not subject to its 
sovereignty, still the approach to delineating airspace from outer 
space suggested by Johnson is sound. According to him the "primary 
question is not where outer space begins but where the upward reach 
of the exclusive power of the underlying state ends." 172 

Taking into account the total space experience, Johnson has suggest- 
ed the existence of substantive law going beyond the concept of the 
peaceful uses of outer space, as used herein, to include the presence 
of law fixing the physical limits subject to the exclusive control of a 
state. He has summed up the situation by stating "it appears that the 
existing state of the law is that we have an area of space extending 
upward from the surface of the earth for an indefinite distance 
which is exclusively controlled by the underlying state — an absolutely 
'un-free' area, one might say — and above that, beginning at some 
undefined point, lies the 'free' realm of outer space." 173 The contrast 
between the views of Johnson and Goedhuis respecting the develop- 
ment of rules of customary international law from the total space 
experience is manifest. 

On the basis of the numerous views presented above it may be 
concluded that there now exists a customary rule of international 
law requiring that outer space be used freely for peaceful purposes, 
and that such peaceful purposes include all of the nonaggressive and 
beneficial uses for which space vehicles have been employed up to 
and at this time. It may be concluded also that the same practices 
which have made it possible for such a rule to come into being 
uphold the principle (or rule) that at a given but unascertained 
point, which point will be duly ascertained and established in the 
future, the exclusive control of the subjacent state terminates. 

While aggressive uses of space are objectionable no matter where 
engaged in, and while peaceful uses may be engaged in freely at 
elevations countenanced by present customary law, there remains an 
ongoing problem respecting the transiting of a space satellite at ele- 

172 Ibid., 7. An essential theme of this book is that space must serve the needs 
of mankind, and that legal rules must be man oriented and must serve human 
needs. 

*" Ibid. 






171 

vations commonly employed at present by aircraft and balloons. 
While it is entirely probable that space satellites, either in the course 
of launch or while returning to earth for landing, may transit over 
nation-states at very low altitudes (from fifty miles down to the sur- 
face) , it is also clear that there has been no final fact respecting this 
potential capability. There is, however, increasing evidence that 
landing vehicles may be obliged to transit for as many as 5,000 miles 
at elevations under 50 miles while preparing for, and engaging in 
landing procedures. Thus, there does not appear to be any practical 
legal answer at this time to this problem except insofar as the resolu- 
tions taken at the U.N. may provide guidance. 

The need to consider this problem has been noted by Johnson, who 
has observed that if it is to be solved "it will be done on the basis of 
an accommodation of the political interests of the States 
concerned." 174 In recalling that the U.N. Resolution of De- 
cember 20, 1961, laid stress on the freedom of outer space, Johnson 
has pointed out that this means "the principle of freedom from unilat- 
eral control — freedom from the power of an individual State to ex- 
clude others from the enjoyment of this great new resource." 175 

Johnson has summarized the needs of nations qualified to engage 
in space activities in these words: "The area within which the un- 
derlying State possesses the right to 'veto' the activity of another 
State must not be permitted to extend to altitudes which would 
hamper the freedom of space exploration." 176 The use of outer space 
depends as much on the ability to transit freely through the lower 
airspace en route to and from orbital voyages as it does upon free- 
dom of orbital transit. Since manned space flight is presumably con- 
structed on the thesis that the current space traveler expects to return 
safely to earth, and this in turn assumes that he contemplates peace- 
ful, i.e., nonaggressive and beneficial activities while located within 
his space vehicle, it may very well arrive that a kind of "innocent 
passage" will be accorded such travelers and their space vehicles 
while situated in the lower airspace while en route to or from orbital 
elevations. If this concept appears reasonable for manned space 
flight, there would seem to be no reason for not applying it, under 
the same relevant conditions, to nonmanned space flight. The dictates 

174 Ioid ., 14. In discussing a situation in which a merchant vessel has entered 
the territorial waters of a foreign state, it has been urged that there ought to 
be "in the interests of stability and certainty of international intercourse, mu- 
tual restraint in the assertion of jurisdiction by the coastal state * * *" Boczek, 
Flags of Convenience 289 (1962). 

«* lUd. 

176 Hid. 



172 

of international peace and security and national self-defense would, 
of course, impose reasonable limitations in both cases upon the exer- 
cise of such a right. 177 

A brief recapitulation of the significance of customary interna- 
tional law as related to outer space is in order. At this time, as in 
times past, custom is the very life of the common law of nations. It 
is an accumulation of favored ways of doing things. It is not so 
much something which has already been settled as it is the means or 
process whereby the required consensus is effected. This consensus 
may be the product of affirmative action or may result from the ac- 
ceptance of a condition. The process of custom demonstrates that 
outer space usages do in fact exist and that they have been generally 
accepted by enough states, including the resource states, as to be con- 
sidered obligatory. Where such common expectations exist a devia- 
tion therefrom may be regarded as a violation of the applicable cus- 
tomary legal norm. In this way customary international law serves 
the important purpose of creating a line between permissible and 
impermissible conduct. In the long run the effectiveness of this proc- 
ess depends upon the willingness of states to engage in mutual ac- 
commodations, which is as central to international law as to other 
legal forms. 

The role of customary law is particularly important in the world 
community's legal order. Here the legal order is built around a 
highly decentralized decisional process, particularly when compared 
with the integrated decisional process of a nation-state. The dis- 
persed international forum with its primitive legislative process 
comes into high relief when compared with national processes. The 
difficulty of obtaining written agreements when the negotiators 
number into the hundreds needs no emphasis here. It does, however, 
argue for the creative use of customary law. So far as detailed outer 
space problems are concerned, despite many demands for particular 
written conventions, the varying national points of view at the time 
of this writing have prevented the achievement of formal treaties. 
The result is that outer space is essentially free of conventional law. 
Further, the treaty process, even at its best, is generally unequipped 
to deal with but a few of the myriad interstate transactions and 
events. This has been especially true "in questions touching the pos- 
session of rights." 178 

As a result of these facts, general policy considerations advanta- 
geous to states at large favor the facilitation of the development of 



177 This concept is discussed in detail at pp. 234-273, 417^*19 infra, 

178 Corbett, Law and Society in the Relations of States 34 (1951). 



173 

law through practice and usage. The needs of the world community 
are not served by placing unreasonable obstacles in the way of the 
customary process. 

Law can be produced only by consent. Consent, however, is derived 
from total conduct, of which express agreement is but one of many 
variations. The law of contract frequently places emphasis upon in- 
jurious reliance or inducing behavior as well as upon the meeting of 
wills in an oral or written compact. 179 Through reliance upon custom 
as a source of law it becomes possible to base consent upon implicit 
or tacit behavior as well as upon express and written agreement. 

Custom, in addition to meeting the problems of a loosely organized 
world community, also possesses certain practical advantages. It 
avoids the need of unanimity, which so frequently burdens the for- 
mal treaty process. Further, customary law can bind the entire com- 
munity. So far as the law of outer space is concerned only the major 
resource states need align themselves with and conform commonly to 
a given practice for it to take on the quality of a rule of customary 
international law. Such law must necessarily serve the needs of the 
entire community. Such law, when established with appropriate con- 
sent — whether implicit, tacit, express, or overt behavior — becomes 
binding upon the many. Sir Frederick Pollock expressed this as fol- 
lows : "As among men, so among nations, the opinions and usage of 
the leading members in a community tend to form an authoritative 
example for the whole." 180 When such law has become binding it can- 
not be lightly cast aside, and occasional breaches or failure to con- 
form do not render it invalid. 

This is true because such law is based upon the fact of comparable 
capabilities in outer space on the part of the leading members of the 
world community — whose practices and policies it must be noted are 
not entirely self -centered and must take into account the needs of 
like-minded nations. In this process the resource states must repre- 
sent the needs of the whole community, for even as between contend- 
ing members of the world community there exists a range of funda- 
mental, common expectations and mutual interests. 

Such expectations and interests are derived from the conduct of 
persons in the general legal sense, namely, the practices of individ- 
uals, private business organizations including such enterprises as 
corporations and comparable legal entities, scientific organizations 
both national and international in scope and composition, nation- 



179 Paton, A Text-Book of Jurisprudence 356-359 (2 ed. 1951). 

180 Pollock, "The Sources of International Law," 2 Columbia Law Review 512 
(1902). 



174 

states through whatever department, agency, or facility they elect to 
employ, and, of course, international organizations — both public and 
private. The nature of the practice or usage is central to the develop- 
ment of customary international law rather than the precise instru- 
mentality through which the conduct is managed or takes place. 

Resource states, themselves, and through permission granted to 
other legal persons, by engaging in space programs — including 
launches and orbital activity — have asserted a legal right to engage 
in the peaceful uses of outer space. No resource state has either ex- 
pressly or by implication suggested that such uses of outer space are 
tainted with illegality. The lack of protests on the part of the nonre- 
source states, together with their tacit acceptance of existing space 
practices, are established facts. The only conclusion which has been 
drawn and which reasonably may be drawn is that the present, ongo- 
ing factual pattern of peaceful space conduct is permissive under 
customary international law. The nonresource states have frequently 
attested to this fact at the United Nations by urging that outer space 
without law can only result in chaos and that a rule of peaceful uses 
will be of benefit to them. Further, they have frequently described as 
urgent the need for universal recognition of these facts. The views 
expressed at the U.N. are of singular importance, since national ex- 
pressions in that forum and the reports presented and resolutions 
and recommendations adopted possess a very high degree of credibil- 
ity as to the substance of customary international law. 181 

In short, the facile recognition of the development of customary 
rules of international space law avoids the need of formal and ex- 
press unanimity in the international decisional process and it also 
suits the needs of all states, large and small. While the existence of 
a customary rule of law for outer space may contribute to the en- 
hancement of stabilizing influences, it is obvious that the mere exist- 
ence of such a rule can not produce favorable results automatically. 

Customary international law has the further advantage in that it 
may be consciously creative. It may require new patterns of conduct, 
and it may move as swiftly or as slowly as the requirements of the 
social complex dictate. It may also carry forward old usages, and 
new members of the world community may be confronted with the 
duty to conform. New states admitted to the United Nations become 
ipso facto parties to the Statute of the International Court of Jus- 
tice. Article 38 of that Statute provides, in part, that the Court de- 

i8i The position of Ceylon as stated by Mr. Malalasekera on December 10, 1962, 
before the First Committee of the General Assembly, fully illustrates this gener- 
al attitude. U.N. Doc. A/C.1/PV.1296, 32-42. See pp. 195-205 infra for a more 
detailed analysis of this position. 



175 

cides disputes in accordance with international law, by applying in- 
ternational custom, as evidence of a general practice accepted by law. 
It should be noted that the Article simply calls for a general, rather 
than a universal practice. 

Customary law, as a source of international law, is confronted 
with abundant problems. Perhaps the most difficult is that it does not 
speak in recorded form. Because of its nature it constantly stands in 
need of human approval and promulgation. Traditionally the role of 
publicists has been to declare its existence. Each new rule of custom- 
ary international law depends upon its own evidence, and this must 
vary according to different times, communications, needs and scien- 
tific capabilities, among others. Nonetheless, customary rules of in- 
ternational law have contributed significantly to acceptable human 
behavior as regards the seas, the continental shelf, airspace, and now 
outer space. While the role of the publicists in recognizing the exist- 
ence of customary rules is an important one, it is also a preliminary 
one. Official recognition through judicial imprimatur may give it 
higher acceptability. 182 Treaties may acknowledge the express exist- 
ence of inherent customary rights. 183 But law without the process of 
custom would be slow in acceptance and late in helping to resolve the 
needs of the world. 

Turning from the processes whereby customary international law 
is created to the substance of the rule providing for the peaceful uses 
of outer space, it should be noted that this rule supports a standard 
of values of utmost importance to the social complex. The policy of 
the United States has been that the introduction into outer space of 
weapons of mass destruction, capable of being used for aggressive 
purposes, could not serve the interests of the United States or of 
mankind. Thus, if the world can come to live with and by the rule of 
peaceful uses of outer space, there may be a possibility that the rule,, 
because of its fundamental reasonableness, may be extended to other 
areas of man's total conduct. It could even serve as a foundation 
upon which other fields of substantive law might be based. In this 
connection it should be remembered that the substantive law of outer 
space, both in existence and now in the process of building, is subject 
to legal principles wherever they may be found. In addition to the 
principle or rule of peaceful uses of outer space, that environment is 
also subject to the terms of the U.N. Charter and to applicable rules 
of general international law. 

182 New Jersey v. Delaware, 291 U.S. 361, 383-384 (1934). 

183 Article 51 of the United Nations Charter, for example, acknowledges the 
existence of the prior inherent and customary right of self-defense under inter- 
national law. 



176 

2. General International Law and Comity 

It has been suggested that certain space practices and usages have 
ripened into customary rules of international law, and, as such, are 
binding upon the members of the world community. It might, how- 
ever, be contended that such practices and usages were merely the 
product of the condition of comity. The distinction between law and 
comity is well known. 

Comity is a relationship enjoyed by states. Practices are freely 
engaged in as a matter of courtesy, and are not mandatory. Such 
practices are not required by law. United States courts have pro- 
vided suitable explanation of the concept. 

The Court of Appeals of New York has stated that "Comity may 
be defined as that reciprocal courtesy which one member of the fam- 
ily of nations owes to the others. It presupposes friendship. It as- 
sumes the prevalence of equity and justice. Experience points to the 
expediency of recognizing the legislative, executive, and judicial acts 
of other powers. We do justice that justice may be done in return." 184 
An earlier decision by the United States Supreme Court held that 
" 'Comity,' in the legal sense, is neither a matter of absolute obliga- 
tion, on the one hand, nor of mere courtesy and good will, upon the 
other. But it is the recognition which one nation allows within its 
territory to the legislative, executive or judicial acts of another na- 
tion, having due regard both to international duty and convenience, 
and to the rights of its own citizens, or of other persons who are 
under the protection of its laws * * *" 185 

The practices performed under the concession of comity create no 
legal rights, per se. Nonetheless, such practices when they have rip- 
ened into usage may assume the form of customary international 
law. In view of the facts presented above it is believed that the cur- 
rent view most commensurate with reality is that the common de- 
mands for free and peaceful uses of outer space have gone beyond 
the reach of comity, and have become principles or rules of interna- 
tional law. 

3. National and International Expressions: Claim and 

Acquiescence 

a. Special International Law 
Special, as distinguished from general international law, is the 
product of a different process than that involved in the creation of 

184 Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255 
(1923). 
!85 Hilton v. Guyot, 159 U.S. 113 (1895). 



177 

-customary rules of law. The customary process emphasizes the role 
of accomplished action. In the realm of special international law the 
emphasis is upon limited or restricted claims. In both instances the 
claims contemplate the bargain of reciprocal action based on mutual- 
ity of interests, and where action follows such claims the acquiescence, 
particularly if spelled out in some kind of written understanding, 
takes on the quality of international law valid for the bargain- 
ing parties. Thus, special international law may result from the ac- 
ceptance by a nation of the offer of another nation as put forward 
originally in a unilateral claim. The obligation becomes that of the 
negotiating parties. If many parties make and accept the same 
claims the obligation becomes a general one. Claim and acquiescence 
may be bilateral and multilateral. 

So far as outer space is concerned the bilateral claims have been 
promulgated by the two major resource nations principally through 
known practical conduct and by exchanges of correspondence by the 
respective heads of states, although in a larger sense the claims are 
reflected in all public official statements. Claims have been addressed 
to the international community at the United Nations and have re- 
sulted in significant resolutions. Claims have also been expressed at 
other public and private international conferences. 

(1) National Claims 

Under this heading only the claims of the two major resource na- 
tions will be discussed. An additional limitation will be imposed 
whereby only the exchanges of viewpoints by the heads of states will 
be considered at this time. 

At the outset it must be remembered that claims relating to the use 
of outer space and respecting its management and control generally 
have not been separated from other considerations. That is, claims 
relating to space have almost always been attached to or encumbered 
with other political-legal problems. Hence, the importance of such 
other problems as disarmament, international peace and security, na- 
tional self-defense, foreign military bases, and comparable interna- 
tional difficulties has manifestly affected the environment in which 
space claims have been made and received. 186 The interrelated quality 
of such claims has resulted in the exercise of great caution in their 



186 It is not necessarily a paradox that during periods of international tension 
limited agreement is often reached on specific subjects. During such periods of 
cold-war maneuvers, and possibly even because of this condition, space was 
used for the peaceful purposes indicated above. Acceptable space practices — 
with their impact upon customary law — have been engaged in by the two major 
powers during the cold war. 



178 

analysis and appraisal. It has also resulted in the transfer in some 
measure of the decisional forum from the political-legal to the scien- 
tific and technological policy maker. This has produced substantial 
international cooperation among those who actively manage and di- 
rect space programs. Their scientific and technological orientation 
has facilitated their putting to one side typical political-legal prob- 
lems with the result that cooperative action has been facilitated. 
Their action, of course, has had a profound effect upon the growth of 
customary rules of law. 

The first effort to clarify United States-Soviet attitudes on outer 
space at the heads of state level goes back to Premier Bulganin's 
letter to President Eisenhower shortly after the launch of the first 
successful Sputnik. In his letter of December 10, 1957, Bulganin re- 
ferred briefly to the Soviet launching of an artificial earth satellite, 
Soviet scientific and technological advancements, Soviet peaceful in- 
tentions, and the "mistake" of the United States and NATO coun- 
tries in misjudging Soviet intentions in the light of Soviet space 
capabilities. 187 

On January 12, 1958, in reply, President Eisenhower introduced 
his proposal relating to the use of outer space by stating : 

I propose that we agree that outer space should be used only 
for peaceful purposes. We face a decisive moment in history in 
relation to this matter. Both the Soviet Union and the United 
States are now using outer space for the testing of missiles de- 
signed for military purposes. The time to stop is now. 

I recall to you that a decade ago, when the United States had 
a monopoly of atomic weapons and of atomic experience, we 
offered to renounce the making of atomic weapons and to make 
the use of atomic energy an international asset for peaceful pur- 
poses only. If only that offer had been accepted by the Soviet 
Union, there would not now be the danger from nuclear weapons 
which you describe. 

The nations of the world face today another choice perhaps 
even more momentous than that of 1948. That relates to the use 
of outer space. Let us this time, and in time, make the right 
choice, the peaceful choice. 

There are about to be perfected and produced powerful new 
weapons which, availing of outer space, will greatly increase the 
capacity of the human race to destroy itself. If indeed it be the 
view of the Soviet Union that we should not go on producing 

187 "Premier Bulganin to the President," 38 Department of State Bulletin 128 
(1958). 



179 

ever newer types of weapons, can we not stop the production of 
such weapons which would use or, more accurately, misuse, outer 
space, now for the first time opening up as a field for man's 
exploration ? Should not outer space be dedicated to the peaceful 
uses of mankind and denied to the purposes of war ? That is my 
proposal. 188 

In this manner the great discourse respecting the peaceful uses of 
outer space began. In the following month the heads of the two re- 
source states again exchanged written views on the uses of outer 
space. 

Premier Bulganin on February 1st, 1958, wrote an extended letter 
to the President summarizing Soviet views on numerous cold war 
subjects. On the subject of outer space he wrote : 

We, of course, do not deny the importance of the question of 
using outer space for peaceful purposes exclusively, i.e., first of 
all, of the question of the prohibition of intercontinental ballis- 
tic missiles with nuclear warheads. I hope, however, Mr. Presi- 
dent, that you will agree that this question can be considered 
only as a part of the general problem of the prohibition of nu- 
clear and rocket weapons. It is for that very reason that the 
Soviet Union, in the interest of strengthening peace and reach- 
ing agreement on questions of disarmament, is also prepared to 
discuss the questions of intercontinental missiles, provided the 
Western powers are prepared to agree on the prohibition of nu- 
clear and hydrogen weapons, the cessation of tests of such weap- 
ons and the liquidation of foreign military bases in the territo- 
ries of other states. There can be no doubt that in such a case the 
reaching of an agreement on the use of cosmic space for peaceful 
purposes exclusively would not meet with any difficulties. 189 
The Soviet view that a consideration of the designated problems 
disturbing man on the earth's surface would have to be discussed 
concurrently with the problems of outer space, before the latter sit- 
uation could be expressly clarified, has frustrated the rapid develop- 
ment of formal written agreements affecting the space environment. 
The remaining exchanges between the two heads of state have floun- 
dered on this point. 

President Eisenhower in responding to the Bulganin note again 
gave important recognition to his earlier claim that outer space 

188 "President Eisenhower and Premier Bulganin Exchange Correspondence 
on Proposals for Reducing International Tensions." 38 ibid. 126 (1958). 
(Italics added.) 

189 "premier Bulganin to the President," 38 iMd. 379 (1958). (Italics added.) 



180 

should be used only for peaceful purposes. In this context he wrote 
on February 15, 1958 : 

Another new idea was that outer space should be perpetually 
dedicated to peaceful purposes. You belittle this proposal as one 
made to gain strategic advantages for the United States. Mr. 
Khruschchev in his Minsk speech [of January 22, 1958, which, 
in a longer and more intemperate vein, was the basis of the Bul- 
ganin letter] said, 'This means they want to prohibit that which 
they do not possess.' 

Since the record completely disproves that uncalled for state- 
ment, may we now hope between us to consider and devise co- 
operative international procedures to give reality to the idea of 
use of outer space for peace only. 

When the United States alone possessed atomic weapons and 
the Soviet Union possessed none, the United States proposed to 
forego its monopoly in the interest of world peace and security. 
We are prepared to take the same attitude now in relation to 
outer space. If this peaceful purpose is not realized, and the 
worse than useless race of weapons goes on, the world will have 
only the Soviet Union to blame, just as it has only the Soviet 
Union to blame for the fact that atomic and nuclear power are 
now used increasingly for weapons purposes instead of being 
dedicated wholly to peaceful uses as the United States proposed 
a decade ago. 190 

Premier Bulganin replied on March 3, 1958, by stating that the 
Soviets would be willing to discuss at a summit conference "the 
questions of prohibiting the use of outer space for military purposes 
and the liquidation of alien military bases on foreign territories." 191 
A broader Soviet proposal, however, was received on March 15,. 
1958: 

In order to ensure the security of interests of all States to the 
maximum degree, and also in the interests of developing inter- 
national co-operation in cosmic-space research for peaceful pur- 
poses, the Soviet Government proposes the conclusion of a broad 
international agreement which would include the following basic 
provisions : 

1. A ban on the use of cosmic space for military purposes and 



190 "President Calls for Positive Response from Soviet Union on Establishing 
Better Relations," 38 ibid. 373-374 (1958). (Italics added.) 

191 "Letter of Premier Bulganin to President Eisenhower, March 3," 38 ibid. 
650 (1958). 



181 

an undertaking by States to launch rockets into cosmic space 
only under an agreed international programme. 192 

The Soviets also proposed the establishment within the framework 
of the United Nations of an international system of control to 
achieve the foregoing objective. Additionally, the Soviets proposed 
the creation of a United Nations agency for international coopera- 
tion in the study of outer space, having the following functions : 

To work out an agreed international programme for launch- 
ing intercontinental and space rockets with the aim of studying 
cosmic space, and supervise the implementation of this pro- 
gramme ; 

To continue on a permanent basis the cosmic-space research 
now being carried on within the framework of the International 
Geophysical Year ; 

To serve as a world centre for the collection, mutual exchange 
and dissemination of information on cosmic research ; 

To coordinate national research programmes for the study of 
cosmic space and render assistance and help in every way to- 
wards their realization. 193 

The Soviet government also presented these proposals to the thir- 
teenth session of the General Assembly of the United Nations. As 
before, the Soviets connected the space issue with other cold war 
subjects and tied the foregoing proposals to the elimination of for- 
eign military bases on the territories of other states. 

With the taking of the office of Premier by Mr. Khrushchev, world 
attention was directed to the announcement by the Soviet Union on 
April 1, 1958, that it was unilaterally suspending atomic and hydro- 
gen weapons tests. This was conveyed to President Eisenhower in a 
letter dated April 4, 1958, from the Soviet Premier. 194 In his reply of 
April 8, President Eisenhower referred, among other subjects, to his 
earlier representations in favor of the peaceful uses of outer space. 
He stated "You will also recall my proposals for the international 
use of outer space for peaceful purposes emphasized in my recent 
correspondence with Chairman Bulganin. These proposals await 
Soviet acceptance." 195 

192 II Documents on Disarmament, 1945-1959 976-977 ; Legal Problems of 
Space Exploration, supra note 10, Chapter I, at 994. 

193 Ibid. 

194 "Premier Khrushchev to the President," 38 Department of State Bulletin 
680-681 (1958). 

ij>5 "President Asks U.S.S.R. To Agree To Begin Study of Specific Disarma- 
ment Measures," ibid. 



182 

Premier Khrushchev replied on April 22, 1958. In referring to the 
prior exchanges on the subject of outer space, Khrushchev, on April 
22, 1958, stated that the Soviets had "seriously considered" earlier 
American proposals that outer space be reserved for peaceful pur- 
poses only, and he noted that the Soviets had previously been on 
record that they "were prepared to consider at a summit meeting the 
question of the prohibition of the use of outer space for military 
purposes and the liquidation of military bases in foreign 
territories." 196 He further stated that the Soviet Union was 
"prepared to conclude an agreement which would provide for the 
prohibition of the use of outer space for military purposes and 
would permit the launching of rockets into outer space only in accord- 
ance with an agreed international program of scientific research." 197 
He conceived of the American proposal for the use of outer space for 
peaceful purposes only as limited to the "prohibition of interconti- 
nental ballistic missiles alone * * *" 198 and as a proposal failing to 
take into account other important aspects of the space problem. He 
therefore related the concept of peaceful uses of outer space to the 
general problems of national security and self-defense, and arrived 
at no fixed response. His position was based on his fear that the 
American proposal would result in a favored military position for 
the United States. 

President Eisenhower's reply to the Soviet note was very brief. He 
restated his belief that "the international use of outer space for 
peaceful purposes * * *" 199 was a significant goal and that the propos- 
al constituted an open and ongoing offer. 

In Khrushchev's reply on May 9, 1958, he confined his letter to the 
ending of atomic and hydrogen bomb tests and made no reference to 
the subject of the peaceful uses of outer space. 200 President Eisen- 
hower's note of May 24, 1958, also dealt exclusively with disarma- 
ment problems. 201 In a talk delivered by Secretary of State Dulles on 
June 6, 1958, reference was made to the proposals contained in Presi- 
dent Eisenhower's letter to Premier Bulganin of January 13, 1958. 
The President had called for the use of outer space only for peaceful 
purposes. The Secretary of State noted that "so far the Soviet reply 

196 "premier Khrushchev to the President," ibid. 814 (1958). 
i»* Ibid. 

198 Ibid. He stated "The essence of your proposal is to prevent, through the 
prohibition of intercontinental ballistic missiles, a nuclear counterblow through 
outer space from being delivered against yourselves." 

199 »The President to Premier Khrushchev," ibid., 811 (1958). 

200 "Premier Khrushchev to the President," ibid., 940-942 (1958). 
2oi « The president to Premier Khrushchev," ibid., 939 (1958). 



183 

has been evasive * * * [but that the government would nonetheless 
endeavor to] devise and implement programs for the peaceful use of 
outer space." 202 

By mid-1958, the two major resource states had become so con- 
cerned with major security issues, particularly disarmament and 
atomic and hydrogen weapons testing, that exchanges on the subject 
of the peaceful uses of outer space were discontinued, although the 
President continued to be firm in his support of his announced poli- 
cies. It was, for example, in this vein that in his State of the Union 
Address in January, 1959, that he stated "We seek to prevent war at 
any place and in any dimension." 203 

American discussions with the Soviets respecting the establishment 
of a formal written rule that outer space might be used only for 
peaceful, i.e., nonaggressive and beneficial, purposes, although it did 
not result in a written agreement, was, nonetheless, not a loss. The 
development of customary principles was not impeded. The respec- 
tive positions were well publicized, and the world community was 
made aware of the nature of the American claim. 

The United States, concurrently, with its bilateral negotiations 
with the Soviets during 1958, presented space claims to the United 
Nations. Here, the Soviets again, at first, sought to prevent consider- 
ation of the subject by linking the peaceful uses of outer space with 
their policies respecting the overseas military bases of the NATO 
nations. 

It now becomes necessary to analyze the reception accorded in the 
forum of the United Nations to the demands of many states that 
outer space be used freely for peaceful, i.e., nonaggressive and benefi- 
cial, purposes. 

(2) Deliberations at the United Nations 
The United Nations became a forum for the consideration of 
claims for the establishment of principles and rules of law for outer 
space as early as 1957. 204 The discourse which was begun at the United 
Nations permitted the two major resource nations, together with 
the other members of the world community, to enunciate space poli- 
cies and legal goals. As a result of such negotiations committees were 
created, and reports, recommendations, and resolutions have been 
prepared and adopted. Proposed statements of principle and draft 



202 Dulles, "The Challenge of Change," ibid., 1037 (1958). 

203 Eisenhower. "The State of the Union," 40 Department of State Bulletin 116 
(1959). 

204 See supra, p. 34, and Annex 6, pp. 455-456. 

791^05—66 13 



184 

technical agreements have been submitted, and there has been a gen- 
eral clarification of legal rights and duties. At the same time that the 
United Nations became the major forum for the discussion of space 
problems, nations continued their bilateral discussions and other in- 
ternational organizations were called upon to share in the responsibil- 
ity of working out practical solutions to special problems. The prob- 
lems of disarmament and the testing of nuclear weapons particularly 
were impressed upon space negotiations. An analysis of the legal 
impact of the different actions taken, including the adoption of Gen- 
eral Assembly resolutions and recommendations will follow. 

The United States, during the IGY, submitted a memorandum to 
the First Committee of the General Assembly asking it to take into 
account the presence and capabilities of space devices in outer space. 
On January 12, 1957, the United States proposed as a first step that 
the United Nations should work toward "the objective of assuring 
that future developments in outer space would be devoted exclusively 
to peaceful and scientific purposes * * * [and that this might be 
accomplished by] the testing of such objects under international in- 
spection and participation." 205 On November 14, 1957, the General 
Assembly adopted Resolution 1148 (XII) which urged that a disarm- 
ament agreement ought to make provision for the "joint study of 
an inspection system designed to ensure that the sending of objects 
through outer space shall be exclusively for peaceful and scientific 
purposes." 206 

On March 15, 1958, the Soviet Union deposited with the Secretary- 
General a proposed agenda item for consideration during the 1958 
session of the General Assembly. This proposal linked the "banning 
of the use of cosmic space for military purposes, the elimination of 
foreign bases on the territories of other countries, and international 
co-operation in the study of cosmic space." 207 The United States on 
September 2, 1958, also proposed that the Assembly's agenda include 
an inquiry on "international co-operation in the field of outer 
space." 208 This was followed by Secretary of State Dulles' proposal 
to the General Assembly on September 18, 1958, that it establish 



205 ii Documents on Disarmament, 1945-1959 733 (1960), (Italics added), 
see ibid., 901-902 ; Annex 6, infra, p. 455. 

207 c/.a t . Doc. A/3818; II Documents on Disarmament, 1945-1959 976; Legal 
Proolems of Space Exploration, supra note 10. Chapter I, at 994. Compare Tau- 
benfeld, "Consideration at the United Nations of the Status of Outer Space," 53 
A.J.I.L. 400 (1959). 

208 ujf t Doc. A/3902 ; Ambassador Lodge filed an explanatory memorandum 
with the request. Legal Proolems of Space Exploration, supra, note 10, Chapter 
I, at 99G-997. Annex 11, infra, p. 460. 



185 

an Ad Hoc Committee "to prepare for a fruitful program on inter- 
national cooperation in the peaceful uses of outer space." 209 Secre- 
tary Dulles explained his proposal as being in the interest of human- 
ity since it would maximize the constructive and beneficial uses of 
space. 

The General Assembly under the agenda title of "Question of 
Peaceful Use of Outer Space" referred the matter to the First Com- 
mittee which engaged in extended maneuverings in meetings con- 
ducted from November 11 to November 24, including the discussion 
of United States 210 and Soviet 211 draft proposals. In addition to the 
substantive problem of the peaceful uses of outer space there was at 
issue the Soviet effort to force a consideration of overseas bases and 
the composition of the proposed Ad Hoc Committee. 

By November 28, the original United States proposals, which at 
this time had come to be known as the 20-power draft, were approved 
by the First Committee by a vote of 54 to 9 (members of the Soviet 
bloc) , with 18 abstentions. 212 The subject was then referred to the Gen- 
eral Assembly and was adopted on December 13, 1958, as Resolution 
1348 (XIII). 213 The Resolution stressed the need for "international 
and scientific cooperation in the peaceful uses of outer space," and 
that "outer space should he used for peaceful purposes only" 214 It 
required the Ad Hoc Committee to prepare a substantial report on 
space problems including "The nature of legal problems which may 
arise in the carrying out of programmes to explore outer space." 215 

The debates in the First Committee ranged widely over many sub- 
jects including the problem of security, the possibility of establish- 
ing boundaries between airspace and outer space, whether space 
might be acquired by states, the extension of sovereignty into space, 
and jurisdiction over events in space. Curiously, few delegates urged 
that nations were entitled to free and equal rights to the use of outer 
space, although the Swedish representative stressed the need for free 
use of space for peaceful traffic as in the case of the high seas. 216 The 
Dutch delegate advanced a position which now has come to be gener- 



20939 Department of State Bulletin 529 (1958) ; Legal Problems of Space 
Exploration, supra note 10, Chapter I, at 997. 

210 U.N. Doc. A/C.1/L.220 and U.N. Doc. A/C.1/L.220 Rev. 1. 

211 U.N. Doc. A/C.1/L.219 and U.N. Doc. A/C.1/L.219 Rev. 1. 

212 U.N. Doc. A/4009. 

213 II Documents on Disarmament, 1305 (1945-1959); Legal Problems of 
Space Exploration, supra note 10, Chapter 1, at 1000. Annex 7, infra, pp. 456-458. 
21 *Ibid. (Italics added.) 

215 ibid. 

216 U.N. Doc. A/C.1/SR.984. 



186 

ally accepted, namely, that "the general principles of law recognized 
by civilized nations" as contained in the Statute of the International 
Court of Justice and the U.N. Charter were applicable to outer 
space. 217 

The discussions supported the general proposition that outer space 
should be used for peaceful purposes only. However, no definition 
was established as to the meaning of "peaceful purposes," and the 
Soviet delegate, Zorin, and the American delegate, Senator Lyndon 
B. Johnson, while agreeing "to the need for the peaceful exploitation 
of man's new capabilities in outer space for the benefit of all man- 
kind * * *" failed to take "a position on the potential legal status of 
space and neither in fact stated a position which would estop future 
claims from being made.'' 218 The two constructive results of the dis- 
cussions in the UN and the Resolution of December 13, 1958, were 
the emphasis placed on the cooperative use of outer space for peace- 
ful purposes and the decision to prepare through the Ad Hoc Com- 
mittee a detailed report on the peaceful uses of outer space. 

The twenty-seven page report, which was submitted to the General 
Assembly on July 14, 1959, constituted a superb analysis of the myr- 
iad of political, legal, and scientific problems created by man's entry 
into outer space. In addressing itself to the legal problems likely to 
arise in the exploration of outer space the committee rightly con- 
cluded that an effort at the comprehensive codification of space law 
would be premature, but, nonetheless, "recognized the need both to 
take timely, constructive action and to make the law of space respon- 
sive to the facts of space." 219 

The report set forth some six legal problems which were consid- 
ered susceptible of priority treatment, and also mentioned five other 
problems of lesser immediate legal significance. These problems are 
presently at the very heart of the discussions on the emerging law of 
outer space. The issues singled out for priority consideration were: 
freedom of outer space for exploration and use, liability for injury 
or damage caused by space vehicles, allocation of radio frequencies, 
avoidance of interference between space vehicles and aircraft, iden- 
tification and registration of space vehicles and co-ordination of 



217 U.N. Doc. A/C.1/SR.987. 

218 Taubenfeld, supra note 207, at 404. Annual Report of the Secretary-Gener- 
al on the Work of the Organization, 16 June 1958-15 June 1959, General As- 
sembly, U.N. Doc. A/4132. 

219 U.N. Doc. A/4141, p. 1268; Legal Problems of Space Exploration, supra 
note 10, Chapter 1, 1246-1274 ; Annex 20, infra, pp. 472-480. Compare. Jessup and 
Taubenfeld, "The United Nations Ad Hoc Committee on the Peaceful Uses of 
Outer Space," 53 A.J.I.L. 877-881 (1959). 



187 

launchings, and re-entry and landing of space vehicles. The less 
pressing problems included the question of determining where outer 
space begins, protection of public health and safety, safeguards 
against contamination of or from outer space, questions relating to 
the exploration of celestial bodies, avoidance of interference among 
space vehicles, and other technical matters such as the means of 
achieving maximum effectiveness of meteorological activities in outer 
space. 220 

The report contained a reference to the role of customary law, 
particularly as related to the yet unsolved problem of where outer 
space begins, and it was suggested that additional experience might 
enable states to view the subject of space not so much from the point 
of view of sovereignty as from the viewpoint of uses. Thus, the 
report suggested that "further experience might suggest a different 
approach, namely, the desirability of basing the legal regime govern- 
ing outer space activities primarily on the nature and type of partic- 
ular space activities." 221 The acceptance in recent years of the rule 
that outer space was to be employed for peaceful, i.e., nonaggressive 
and beneficial, purposes has largely proven the perceptiveness of this 
portion of the committee report. 

The United States in September, 1959, through Secretary of State 
Herter, called to the attention of the General Assembly the hope that 
outer space would be used exclusively for peaceful purposes. In dem- 
onstrating the relationship between space and disarmament he said 
on September 17, 1959, that because "progress in disarmament might 
be slow, * * * the United States has urged that peaceful uses of outer 
space be considered as a separate step toward constructive change." 222 
He added that there could be "no more dramatic illustration of a 
spirit of cooperation in the world today as we stand at the threshold 
of the space age than for this Assembly to act unanimously in this 
field. This would be a major step forward in the process of peaceful 
change." 223 

During the following months the First Committee of the General 
Assembly considered the Report and worked out a plan for the estab- 
lishment of a new committee. On December 12, 1959, the General 
Assembly unanimously adopted the Committee's action in the form 
of a resolution entitled "International Co-operation in the Peaceful 
Uses of Outer Space," 1472 (XIV). 5 



224 



220 Ibid., 1268^1270 ; Annex 20, infra, pp. 472-480. 

221 IUd., 1270 ; Annex 20, infra, pp. 472^80 

222 Herter, "Peaceful Change," 41 Department of State Bulletin 472 (1959). 

223 Ibid., 473. 

22 *U.N. Doc. A/4354; Legal Problems of Space Exploration, supra note 10, 
Chapter I, at 1274-1275 ; Annex 1, infra, pp. 441^43. 



188 

The Resolution placed strong emphasis upon the use of outer space 
for peaceful purposes. It called for international cooperation, the 
exchange of experiences, and the exploration and exploitation of 
outer space for such purposes. The Resolution, therefore, continued 
the precedent fixed in 1957 that outer space be reserved for peaceful 
purposes. During a time plagued with the tensions incident to disarm- 
ament considerations, the Resolution took into account the benefits 
derived and the usages which matured during the IGY. It author- 
ized the new committee to embark upon a study of the "nature of 
legal problems which may arise from the exploration of outer 
space." 225 

The Committee on the Peaceful Uses of Outer Space was dormant 
— in part because of procedural disagreements — not meeting from its 
creation until November 1961. During this period the United States, 
through President Eisenhower's address to the General Assembly on 
September 22, 1960, disclosed concern that the problem was being 
neglected. Thus, he stated at the U.N. : 

Another problem confronting us involves outer space. 
The emergence of this new world poses a vital issue: Will 
outer space be preserved for peaceful use and developed for the 
benefit of mankind? Or will it become another focus for the 
arms race — and thus an area of dangerous and sterile competi- 
tion. 

The choice is urgent. And it is ours to make. * * * National 
vested interests have not yet been developed in space or in celes- 
tial bodies. Barriers to agreement are now lower than they will 
ever be again. * * * 
I propose that : 

1. We agree that celestial bodies are not subject to national 
appropriation by any claims of sovereignty. 

2. We agree that the nations of the world shall not engage in 
warlike activities on these bodies. 

3. We agree, subject to appropriate verification, that no na- 
tion will put into orbit or station in outer space weapons of mass 
destruction. All launchings of space craft should be verified in 
advance by the United Nations. 

4. We press forward with a program of international coopera- 
tion for constructive peaceful uses of outer space under the 
United Nations. Better weather forecasting, improved worldwide 
communications, and more effective exploration not only of 

225 Ibid. 



189 

outer space but of our own earth — these are but a few of the 
benefits of such cooperation. 226 

This forceful precedent was shared by President Kennedy when he 
spoke to the General Assembly on September 25, 1961. He stated : 
As we extend the rule of law on earth, so must we also extend 
it to man's new domain : outer space. 

All of us salute the brave cosmonauts of the Soviet Union. 
The new horizons of outer space must not be driven by the old 
bitter concepts of imperialism and sovereign claims. The cold 
reaches of the universe must not become the new arena of an 
even colder war. 

To this end, we shall urge proposals extending the United Na- 
tions Charter to the limits of man's exploration in the Universe, 
reserving outer space for peaceful use, prohibiting weapons of 
mass destruction in space or on celestial bodies, and opening the 
mysteries and benefits of space to every nation. We shall further 
propose cooperative efforts between all nations in weather pre- 
diction and eventually in weather control. We shall propose, fi- 
nally, a global system of communications satellites linking the 
whole world in telegraph and telephone and radio and televi- 
sion. The day need not be far away when such a system will 
televise the proceedings of this body to every corner of the 
world for the benefit of peace. 227 

When the First Committee began in October 1961 to discuss the 
order to be assigned to the discussion of agenda items, it soon became 
evident that a substantial number of countries wished to assign a 
high priority to the subject of the peaceful uses of outer space. At 
the 1170th meeting of the Committee on October 19, the United 
Kingdom, Thailand, Guinea, Afghanistan, and Libya urged an early 
discussion of the subject. The Soviet Union, and its satellites, how- 
ever, sought to delay a consideration of the subject. 228 

The Committee on the Peaceful Uses of Outer Space having sub- 
mitted a short report to the First Committee on November 27, 1961, 229 
and the governments of Australia, Canada, Italy, and the United 



226 "President Eisenhower Addresses U.N. General Assembly," 43 Department 
of State Bulletin 554-555 (1960) (Italics added) ; Legal Problems of Space 
Exploration, supra note 10, Chapter I, at 1009. 

227 "Let Us Call a Truce to Terror," 44 Department of State Bulletin 622 
(1961). (Italics added.) 

228 U.N. Doc. Official Records of the General Assembly, Sixteenth Session, 
First Committee, 37-39 (1961) ; U.N. Doc. A/C.1/SR.1170. 

229 U.N. Doc. A/4987. 



190 

States having prepared a four-nation draft resolution on December 
2, 1961, 230 the First Committee initiated debate on December 4. 231 In 
addition to the foregoing documents they took into account a letter 
dated November 14, 1961, addressed by the representative of the So- 
viet Union to the Secretary-General. 232 The operative language of the 
four-nation draft resolution, so far as the proposal dealt with legal 
principles, provided that the General Assembly : 

1. Commends to States for their guidance in the exploration 
and use of outer space the following principles : 

(a) International law, including the Charter of the United 
Nations, applies to outer space and celestial bodies ; 

(b) Outer space and celestial bodies are free for explora- 
tion and use by all States in conformity with international law, 
and are not subject to national appropriations by claim of sover- 
eignty or otherwise. 2 ™ 

A revision of this draft proposal was submitted to the First Com- 
mittee on December 11, 1961, by all four of the original proponents, 
plus twenty additional states, including the Soviet Union. 234 The only 
change made with respect to legal principles, part "A" of the propo- 
sal, was to eliminate the letter "s" and the six words which are 
underscored above. As revised the proposed General Assembly resolu- 
tion was approved unanimously by the First Committee on De- 
cember 11, 1961. 235 It was then adopted unanimously by the General 
Assembly on December 20, 1961, as Kesolution 1721 (XVI). 236 

The debates in the First Committee disclose no stated reason for 
eliminating the reference to "s by claim of sovereignty or otherwise." 
The terms appear to be redundant when considered in relation to the 
retained terminology. Perhaps they were dropped for reasons of 
style. Their presence added nothing, nor did their absence affect 
legal rights. 

The importance of the two provisions adopted requires reference 
to the meaning attributed to them during the discussions at the First 
Committee. Speaking in support of the unamended four-nation pro- 
posal Ambassador Stevenson stated on December 4, 1961, that draft 
resolution "A" contemplated a system of law and order in outer 

230 u.N. Doc. A/C.1/L.301. 

231 U.N. Doc. A/C.1/SR.1210. 

232 u.N. Doc. A/C.l/857. 

233 u.N. Doc. A/C.1/L.301. (Italics added.) 

234 u.N. Doc. A/C.l/L.301/Rev. 1 and Rev. 1/Corr. 1. 

235 u.N. Doc. A/C./SR.1214. 

236 u.N. Doc. A/5100, 6-7; 9 V.N. Review 56-57 (January 1962) ; Annex 2, 
infra pp. 443-446. 



191 

space which would be beneficial to all states, the large and small 
alike. He expressed the hope that space exploration would not be- 
come a contest between nations, that ideological quarrels would not 
affect other planets, and that all nations would engage cooperatively 
in the allocation of radio frequencies for space communications and 
in global systems of weather prediction. In his view : 

The first principle was that international law, including the 
Charter of the United Nations, applied to outer space and celes- 
tial bodies. In that connection, he pointed out that the Ad Hog 
Committee on the Peaceful Uses of Outer Space had observed in 
its report of 14 July 1959 (A/4141) that, as a matter of prin- 
ciple, the United Nations Charter and the Statute of the Inter- 
national Court of Justice were not limited in their operation to 
the confines of the earth. 

The second principle was that outer space and celestial bodies 
were free for exploration and use by all States, and were not 
subject to national appropriation. Freedom of space and of ce- 
lestial bodies, like freedom of the seas, would serve the interests 
of all nations; man should be free to venture into space without 
any restraints except those imposed by the laws of his own na- 
tion and by international law, including the United Nations 
Charter. That principle also had been recognized in the report 
of the Ad Hog Committee and had since then been confirmed by 
the practice of States. 237 

He then added that the time had not arrived when the limits of 
outer space could be fixed. The boundary "between air space and 
outer space could be drawn only after further experience, and by 
consensus of opinion among nations." 238 

All of the other speakers approved the terms of the draft resolu- 
tion "A," and there were no criticisms of this proposal. The propo- 
nents made it clear that part "A" of the resolution, as well as the 
remaining elements consisting of "B" through "E," dealt exclusively 
with the peaceful uses of outer space, and that the separate military 
questions of space should be considered in the context of disarma- 
ment negotiations. Thus, a representative view was that of the Cana- 
dian delegate who stated "the Committee was not now dealing with 
the military aspects of the question; its objective should be to ensure 
the use of space for peaceful purposes only, by fostering internation- 
al co-operation in all phases of space exploration." 239 

237 zj,n. Doc. A/C.1/SR.1210. 

238 Ibid. 

239 U.N. Doc. A/C.1/SR.1210, 247. (Italics added.) 



192 

The delegates in discussing the draft proposal "A" found occasion 
to consider the impact of a declaration of legal principles upon the 
whole regime of outer space. Sir Patrick Dean of the United King- 
dom summed up this as follows: "It was of great importance that a 
satisfactory legal regime should be established for outer space and 
the celestial bodies. Such a regime, however, must be established step 
by step; a comprehensive code of law for outer space was not yet 
practicable or desirable. However, certain broad legal principles 
could be laid down and should be regarded as injunctions of great 
weight and as useful steps towards such a legal regime." 240 

Several delegates stated that the principles set forth in the second 
paragraph of the proposed draft resolution "A" had already been 
generally accepted by states. This was the view of the delegates of 
Australia, Italy, Peru, Poland, Sweden, and Spain. They based this 
conclusion on the fact that "no country had objected to the orbiting 
of space vehicles over its territory either during or since the Interna- 
tional Geophysical Year." 241 

The Spanish delegate, along with several others, however, consid- 
ered that the first principle contained in draft resolution "A" was 
creative rather than declaratory in nature. Thus, Mr. De Lequerica 
indicated that since it was too early to settle all legal problems 
affecting outer space the sponsors of the draft resolution had acted 
properly in confining themselves "to laying down the principle that 
international law applied to outer space and celestial bodies * * *." 242 
This, of course, runs counter to the general view that international 
law applied in outer space absent the resolution. 

The Japanese delegate, failing to weigh the post-1957 experience 
in space, expressed the hope that "certain general principles should 
be established as soon as possible * * *" and indicated that one "such 
principle was that outer space must be used for peaceful purposes 
alone." 243 He stressed the need for the banning of outer space for 
"military" purposes as soon as possible. The Greek delegate's remarks 
indicate his belief that the adoption of the draft resolution "A" 
would be creative rather than declaratory. 244 

The only views which might be construed as critical of the sub- 
stance of part "A" of the resolution were expressed by the Indian 

240 Ibid., 249. 

241 U.N. Doc. A/C.1/SR.1213, 264. The Iranian delegate after mentioning that 
no state objected to the free orbiting of satellites indicated that this seemed to 
be a tacit acknowledgment that "territorial sovereignty did not extend beyond 
air space." Ibid. 

242 Ibid. 

24 3 U.N. Doc. A/C.1/SR.1212, 258. (Italics added.) 

244 U.N. Doc. A/C.1/SR.1213, 265. 



193 

delegate. He stated that his delegation had no objection to the 
proposal and then said "He agreed with the principles proclaimed 
in operative paragraph 1 of draft resolution A, but he felt that the 
basic concepts of international law might perhaps be too limited 
for outer space a where the concepts of nationality and sovereignty 
would be out of place." 245 

When the revised draft was presented to the First Committee 
only eight delegates debated its adoption, and not all made refer- 
ence to resolution "A." Mr. Yost, speaking for the United States, 
stated that the "revised text gave formal recognition to two funda- 
mental legal principles on which the Committee should base itself 
in examining legal problems which might arise from the exploration 
and use of outer space." 246 The British delegate stated that resolu- 
tion "A" had "enunciated" legal principles relating to the peaceful 
uses of outer space, and hoped that within the framework of the 
disarmament program it would be possible to establish controls so 
as to "limit the use of outer space to peaceful purposes only." 247 
The Soviet delegate indicated that the resolution "enunciated cer- 
tain legal principles for the guidance of States in the exploration 
and use of outer space * * *." 248 The French delegate stated that 
while it was "certainly proper to declare that international law, 
including the Charter of the United Nations, applied to outer space 
and celestial bodies * * *" he found merit in the cautious way in 
which the second part of resolution "A" sought to avoid the making 
of precise recommendations. 249 Thereupon, the chairman, finding 
no objections within the committee stated that the resolution would 
be considered as having been adopted unanimously. It was sub- 
sequently adopted unanimously and without amendment by the 
General Assembly as Resolution 1721 (XVI) on December 20, 1961. 250 

Several important facts resulted from these discussions on the 
law of outer space. The Resolution was adopted unanimously and 
without reservations. Second, it stressed the existence of a legal 
regime for space. Third, it emphasized the free use of space rather 
than a restricted use of space. Fourth, it recognized the common 
interest of mankind in furthering the peaceful uses of outer space, 
and thereby raised important questions as to the differences, if any, 
between peaceful and military uses. Although the entire resolution 

245 IUd. 

246 U.N. Doc. A/C.1/SR.1214, 267. (Italics added.) 

247 IUd., 268. (Italics added.) 

24 « Ibid. 
249 Ibid. 

25 °U.N. Doc. A/5100, 6-7; 56 A.J.I.L. 946-949 (1962) ; Annex 2, infra, pp. 
443-^46. 



194 

did not forbid the use of outer space for military purposes, it is 
correct to say that the participants, when employing the term "mili- 
tary," were not suggesting or implying that space could not be used 
for peaceful, i.e., nonaggressive and beneficial military purposes. 
The participants in 1961 were using the term "military" as meaning 
aggressive military purposes. Thus, one of the major contributions 
of the discussions and of the resolution was to help clarify the term 
peaceful uses to include nonaggressive military purposes. The agree- 
ment that space might be used freely for exploration did not suggest 
that in the course thereof states might endanger the peace and secu- 
rity of other states. 251 The Committee did not endeavor to delineate 
examples of aggressive and nonaggressive uses, although the Hun- 
garian delegate on one occasion characterized Midas and Samos 
satellites as engaged in military espionage and declared the West 
Ford experiment to be a "military project." 252 

The efforts to arrive at suitable distinctions between aggressive 
military and nonaggressive military functions is a continuing one. 253 
Probably of greatest importance, however, was the demonstration, 
following a long period of Soviet intransigence, that the two resource 
nations could come to some kind of explicit agreement relating to 
the uses of outer space. This, in turn, led to the possibility that the 
United Nations might serve as a continuing forum for considering 
the claims of all nations relating to outer space. 

Resolution 1721 (XVI) is important to the international law of 
outer space for several reasons. First, a unanimous resolution of the 
General Assembly provides a convenient means for the promulgation 
of legal principles. Second, the principles so enunciated may be 
extended and refined through the subsequent acceptance of more 
detailed legal rules. Third, such resolutions may be easier of adop- 
tion than formal treaties, in that such resolutions may avoid the 
psychological appearance of permanent commitments. Fourth, they 
may not only be as practical as treaties, but they may also avoid 
the constitutional problems which may confront some nation-states. 
Thus, the internationally sponsored resolution, like customary law, 
mav be distributive of international legal rights and duties resulting 
from claims advanced in the international forum. The substance 
of principles which have been put forward as international resolu- 
tions have been referred to by Schachter as "soft" law as opposed 

251 Goedhuis, "Some Trends in the Political and Legal Thinking on the Con- 
quest of Space," 9 Xetherlands International Laic Review 12S (1962). 

252 UJT. Doc. A/C.1/SR.1212. 260. See infra, pp. 302-304, 314, 401. 

253 infra, pp. 244-246, 265-277, 292-293. 



195 

to the "hard" law of treaties. The form in which the law is promul- 
gated is less important than the fact that some resolutions of the 
General Assembly, like explicit international agreements, do have 
legal force and significance. 

The content of international resolutions may be vague, but it 
may also be specific. The United States delegate to the Committee 
on the Peaceful Uses of Outer Space on March 19, 1962, told that 
body that the terms of Resolution 1721 (XVI) were both practical 
and specific. He stated : 

We should proceed in this area with the recognition that the 
task of the organized international community is to develop 
principles and standards which are sufficiently realistic and 
specific to have an impact on international practice and which 
are not so grandiose or elaborate as to be impractical and there- 
fore ignored. 

The practical and specific principles, which were unanimously 
approved by the Assembly in Part A of General Assembly Reso- 
lution 1721 (XVI), form the basic foundation of a legal regime 
for outer space. They represent a forward-looking expression 
by the Assembly that outer space is indeed the province of all 
mankind. They are practical in the sense that the enlightened 
self-interest of all States should lead to compliance with them. 154 
He concluded that the United Nations was capable of playing an 
important role by way of the resolution passing process in develop- 
ing principles for the guidance of states in the peaceful uses of outer 
space. On such foundations the United Nations has been the forum 
for the consideration of more detailed legal rules. 

The practical use of resolutions was noted by the representative of 
the United Kingdom at the meeting of the legal subcommittee of the 
Committee on the Peaceful Uses of Outer Space on April 17, 1963. 
Miss Gutteridge of the British Foreign Office legal staff pointed out 
that a unanimous resolution of the General Assembly "would be 



254 U.N. Doc. A/AC.105/PV.2, 33-35. On April 22, 1963, the Italian delegate 
told the legal sub-committee that binding legal principles might be expressed 
in the form of a UN resolution. He said "In international law, rules were 
binding primarily because States considered themselves bound by such rules, 
whatever their origin. From that viewpoint recommendations of the General 
Assembly undoubtedly had binding force." Compare Tammes, Decisions of 
International Organizations as a Source of International Law, 94 Recueil des 
Cours 261 (1958) ; Virally, La Valeur Juridique des Recommendations des 
Organisations Internationales, 2 Annuaire Francais de Droit International 66 
(1956). 



196 

most authoritative and would have some advantages over an agree- 
ment in view of the possibility that all States might not accede to 
an agreement or that delays in ratification or failure to ratify might 
considerably reduce its scope.'' 255 It was her view that the adoption 
of such a resolution on such a specific matter as space vehicle liability 
or the right of a nation-state to the return of its astronauts from 
foreign areas might usefully precede the conclusion of explicit inter- 
national agreements. 

Substantial authority exists in support of the view that the unani- 
mous resolution of an almost universal international organization, 
such as the United Nations, is both authoritative and also, depend- 
ing on the language used, may be relied upon as the basis of legal 
rights and duties. Such resolution, of course, can be creative of new 
rights and duties, and it may also simply restate or promulgate 
existing rights and duties. As noted above, Resolution 1721 (XVI), 
in the views of many 3 merely summarized in written form pre- 
existing customary law and therefore was promulgative rather 
than creative. Just as there have been no official protests by states 
respecting the practice of orbiting space vehicles in outer space, 
there have been no official protests concerning the force and validity 
of the resolution. This is true even though the resolution, like any 
other written legal document, is potentially subject to differing 
viewpoints and interpretations. 

It is not possible to develop at length the fact that a unanimous 
resolution of the United Nations possesses legal force. Starke has 
analyzed the relationship between customary international law and 
General Assembly resolutions. He has written that such resolutions 
or comparable organizational decisions "may represent intermediate 
or final steps in the evolution of customary law." 256 He also holds 
that a "Resolution or decision may suffice to create a precedent for 
future actions." 257 This is true because the context in which a reso- 
lution has been prepared, as well as its specific language, may affect 
its legal status. 

Two basic tests have been put forward by Sloan. He has observed 
that : 



255 u.N. Doc. A/AC.105/C.2/SR.20, 7. 

256 Starke, An Introduction to International Law 35 (3d ed. 1954). 

257 Ibid, at footnote 3. However, where a UN resolution does not have the 
approval of a major member, such as the United States, it "does not neces- 
sarily bind the members. It is evidence of public opinion which may or may 
not ripen into custom or be set forth in a treaty." II International Law, De- 
partment of the Army Pamphlet 27-161-2 43, fn. 32 (1962). 



197 

The first concerns the authority or competence of the General 
Assembly in regard to the subject-matter, to the addressee, and 
to the contemplated action or decision. The second concerns the 
intention of the General Assembly in adopting a given resolu- 
tion, for even where a body may be competent to make a binding 
decision it may voluntarily limit its action to something less. 258 
Resolution 1721 (XVI) refers to states as the subject of its terms, 
and seeks to prescribe certain of their activities. It deals with non- 
governmental as well as governmental bodies. It makes provision 
for the submission of information respecting space launches, and 
it calls for the submission of a variety of reports. Two members of 
the United Nations, beginning with the report of March 5, 1962, 
submitted by the United States, have registered launches of vehicles 
going into orbit and beyond. Such registrations have been based on 
the terms contained in the resolution. Many nation-states, as well 
as public and private international organizations a have continually 
made reports to the United Nations respecting their space activities. 
Such reports have also been based on the terms contained in the 
resolution. The whole history of the resolution coupled with unvary- 
ing national efforts to comply with its terms clearly suggests the 
conclusion that it possesses legal as well as moral and political force. 
States have been acting in conformity with it from a sense of obli- 
gation, which is one of the basic tests in ascertaining the legal 
character of a resolution in international law. 259 The United Nations, 
of course, is free to ascribe whatever meaning it wishes to a resolu- 
tion, and it is noteworthy that part "A" by its terms commends or 
enunciates "principles" respecting the space activities of states. In 
the entire context they can be regarded only as promulgated legal 
principles, and, as such, can be meaningful only if they are regarded 
as binding on states. Secretary of State Eusk has referred to the 
principles contained in Part "A" as "presently the law; the unani- 
mous action of the General Assembly in adopting the resolution, as 



258 Sloan, "The Binding Force of a 'Recommendation' of the General Assem- 
bly of the United Nations," 25 Brit. Yb. Infl L. 3 (1948). Some resolutions 
of the General Assembly have been described as not "binding on member 
States." When resolutions have been cast in "the form of a declaration * * * 
particular weight" is accorded a resolution. Schwebel, "The Story of the 
U.N.'s Declaration of Permanent Sovereignty Over Natural Resources," 49 
A.B.A.J. 469 (1963). 

2 5 9 Ibid., 2. 



198 

action by the governments of the world assembled, confirms this 
view." 260 

The unanimity of the Assembly action necessarily affects the dis- 
tinction between the moral, political, or legal effect of a resolution. 
Johnson has concluded a careful study of the force of such resolu- 
tions by stating "There is also nothing to prevent Members incurring 
binding legal obligations by the act of voting for Resolutions of 
the General Assembly, provided there is a clear intention to be so 
bound * * * . Their value * * * depends upon the extent to which they 
can be regarded as expressions of the 'juridical conscience' of human- 
ity as a whole rather than of an incongruous or ephemeral political 
majority." 261 Further, it is well known that the general role of the 
General Assembly has been considerably expanded over the years 
since 1945. The applicability and force of its resolutions have grown 
with its own added significance. Writers who deny that such reso- 
lutions are formally binding often admit that "they have great 
persuasive value." 262 Where, however a the General Assembly unani- 
mously promulgates principles which reflect a consensus of practice 
which has emerged as customary international law, there is no 
difficulty in asserting that such a resolution and its contents con- 
stitute legal injunctions of great weight. 

With the submission of specific and general proposals to the 
United Nations relating to the peaceful uses of outer space, questions 
have arisen as to the form which such proposals should take. In 
addition to the resolutions already adopted by the General Assembly, 
proposals have been put forward entitled recommendations, resolu- 
tions, declarations, codes, international agreements, and simply, draft 
proposals. The documents bearing these titles have concentrated on 
so-called "basic principles" and also upon detailed rules for a specific 
type of situation. 

The delegates to the United Nations have endeavored to reach 
some kind of consensus as to the legal implications involved in the 
selection of such terms. In doing so they have been governed by 
their views as to the substantive law to be contained in such docu- 
ments, as well as by general political considerations, including bar- 
gaining advantage. The choice of form has also been affected by the 

260 Rusk, supra note 164, at 318. Compare Plimpton, U.N. Doc. A/AC.105/ 
PV.2, 13-15, where he states that the General Assembly Resolution "rejected 
the concept of national sovereignty in outer space." Also, Gore, U.N. Doc. 
A/C.1/PV.1289, 21. 

261 Johnson, "The Effect of Resolutions of the General Assembly of the United 
Nations, 32 Brit. Yb InVl. L. 121-122 (1955-1956). 

262 Abi-Saab, supra note 117, at 109. 



199 

fact that not all delegates have a clear understanding of the legal 
differences between principles and rules as noticed at the beginning 
of this Chapter. The delegates have recognized that Resolution 1721 
(XVI) sets forth general legal principles. They have also recog- 
nized the need to recite additional and clarifying principles and at 
the same time to achieve agreement on specific rules. 

The 1962-1963 discussions relating to form have centered on the 
differences, if any, between recommendations, resolutions, declara- 
tions, and explicit international agreements (treaties, codes, or con- 
ventions) proposed or sponsored at the U.N. There was not entire 
agreement by the delegates that the form should be determined by 
the subject matter, in view of the fact that there was not complete 
agreement as to the legal differences between differing forms. The 
central problem was put forth in the Soviet representative's remarks 
before the First Committee in 1962. He said that "there is no need 
to prove in detail that the draft declaration * * * would be a docu- 
ment obliging States to adhere strictly to its provisions. There is 
no need to prove that the resolution of the General Assembly — any 
resolution of the General Assembly according to the Charter — is 
only a recommendation which has no legally compulsive char- 
acter." 263 During 1963 the debates in the legal subcommittee reflected 
several approaches as to form. Broadly speaking, the Soviet bloc, 
because of its well known antipathy toward the role of general 
customary international law, has sought a highly formal expression 
of space law principles and rules. This has resulted in favor for 
international treaties or conventions and for signed declarations. The 
Soviet preoccupation with the view that only explicit written agree- 
ments can serve as a source of international law — despite their affirm- 
ative votes on Eesolutions 1721 (XVI), 1802 (XVII), and 1962 
(XVIII) — has been demonstrated in the debates of the legal sub- 
committee. In discussing outer space the Soviet delegate has argued 
that a state might hinder the use of outer space by another state for 
peaceful purposes because "the principle that there must be [explicit 
written] agreement on activities affecting the interests of other 
countries was widely recognized in international law, witness the 
many bilateral and other agreements concerning the regime of 
international waters," 264 Of course, the Convention on the High 
Seas, taking into account customary international law, is "generally 
declaratory of established principles of international law." 265 On 

263 U.N. Doc. A/C.1/PV.1289, 51. 

264 U.N. Doc. A/AC.105/C.2/SR.28, 12-13. 

265 U.N. Doc. A/CONF. 13/L/53 and corr. 1. 

791-405— «6 14 



200 

another occasion the Soviet delegate suggested there would have 
been no need for the legal subcommittee if custom were regarded as 
a reliable source of international law. 266 However, the Soviet bloc 
has not denied the fact that customary international law does exist. 

The United States in particular, with broad support, has favored 
the use of unanimous resolutions of the General Assembly as a 
means to ratify or promulgate international legal principles. It has 
displayed some concern lest basic principles set down in Resolution 
1721 (XVI) might suffer from erosion or unintentional modification 
in the course of adding to and extending such principles. 267 

There has also been concern lest the establishment of rules intended 
to render existing basic principles more specific should not, in fact, 
depart from such principles. The Soviet delegate on May 7, 1962, 
told the Committee on Peaceful Uses of Outer Space that the adop- 
tion of the General Assembly Resolution 1721 (XVI) constituted the 
approval of "certain general principles which should guide the States 
in their outer space operations * * *" 2G8 Although this resolution only 
commended certain principles to member states, such principles 
according to the United States government "constitute the basis of a 
universally accepted charter for outer space." 269 

Soviet bloc states in seeking to argue the need of stating legal 
principles in the form of a Declaration of the United Nations, pre- 
ferably signed by governments, have endeavored to cast some doubt 
on the fact that a unanimous resolution of the General Assembly 
is generally considered to constitute — if so intended — operative inter- 
national law. Thus, the Romanian delegate told the legal subcom- 
mittee on April 18, 1963, that if principles, which he preferred to 
rules, "were embodied in a General Assembly resolution, there was 
no certainty that they would be implemented. Numerous precedents 
from United Nations experience confirmed such a view. The best 
solution would be to draw up a declaration which would be signed 
by Governments and would have the legal force of an international 
agreement." 270 The Polish delegate told the committee much the 
same on April 23, 1963. It was his view that although Resolution 
1721 (XVI) "laid down the fundamental principles of international 
law applicable to outer space * * * . Such resolutions, being merely 
recommendations without binding force, could not be considered 



zee u.N. Doc. A/AC.105/C.2/SR.17, 4. Compare, Tunkin, supra note 103, at 
419-430. 

267 u.N. Doc. A/AC.105/PV.2, 13-15 ; U.N. Doc. A/C.1/PV.1289, 12. 

268 u.N. Doc. A/AC.105/PV.3, 23-25. 
260 u.N. Doc. A/C.1/PV.1296, 3-5. 
270 u.N. Doc. A/AC.105/C.2/SR.18, 10. 



201 

sources of law, although States were undoubtedly correct in attach- 
ing particular importance to some of them. It was now for the Sub- 
committee to translate existing resolutions on the legal aspects of 
outer space into more binding legal language." 271 

This argument fails to take into account the fact that Resolution 
1721 (XVI) promulgated existing general customary law and the 
form employed has been frequently used to enunciate legal principles. 
In his view, practice had demonstrated that resolutions had been 
less effectively applied than legally binding rules. In supporting 
the form of a signed declaration he minimized the unwillingness of 
some states to sign such a document, and urged the conclusion that 
such declarations, as opposed to resolutions, should be accorded 
"binding legal force." 272 

The delegate from Lebanon told the subcommittee on April 25, 
1963, that a solemn declaration like the Universal Declaration of 
Human Eights, would have greater authority than an ordinary 
resolution of the General Assembly in establishing space law prin- 
ciples. In his view, the acceptance of such a declaration would lead 
the way to a convention or covenant containing such principles and 
that this form of document might then be recommended by the Gen- 
eral Assembly to its members for ratification. However, for more 
mundane matters, such as liability or return of astronauts, an inter- 
national agreement subject to ratification was more applicable. 273 

The Indian delegate also expressed preference for an agreement 
in the form of a declaration of general principles rather than a 
resolution. It was his view that the declaration might be followed 
by a "convention which would be ratified by States and thus become 
legally binding." However, he soon amended this somewhat curious 
statement by adding "A declaration had great moral force and 3 when 
adopted unanimously, was generally accepted as part of international 
law." 274 His objection to agreement in the form of a resolution was 
not that it was lacking in legal validity, but that such a document 
might be somewhat lengthy. 

Mr. Meeker, the United States representative, endeavored to 
clarify the difference between principles and rules in his remarks to 
the subcommittee on April 24, 1963. He pointed out that while both 
principles and rules may establish legally binding rights and duties, 



27i U.N. Doc. A/AC.105/C.2/SR.19, 5. 

272 Ibid., 6, citing Hall, A Treatise on International Law, sec. 109 (8th ed. 
1924). 

273 u.N. Doc. A/AC.105/C.2/SR.21, 10. 

274 u.N. Doc. A/AC.105/C.2/SR.22, 10. 



202 

principles relate to broad concepts and rules relate to specific con- 
cepts, e.g., liability in the event of accidents and assistance and return 
of astronauts. Only rules are able to deal with detailed provisions 
relating to such matters as scope of liability, or the procedure for 
presenting claims, or the forum to resolve the meaning of an agree- 
ment. Such matters, in his view, properly ought to be treated in 
international agreements, treaties, or conventions. 

On the other hand, he urged that a resolution of the General 
Assembly better served the needs of the international community as 
a vehicle for the declaration of general principles. He pointed out 
that it was easier and faster to adopt a resolution than to arrive 
at a formal agreement. The latter process was always subject to 
uncertainty as to the number of states which would ratify it. He 
referred to the inconsistency of the Soviet position, in that members 
of the Soviet bloc had, in 1962, favored the adoption of a General 
Assembly Resolution containing general principles of international 
law relating to friendly relations and international cooperation 
among states. 275 

Mr. Meeker concluded his analysis of the legal force of different 
forms by calling attention to the many sources of international law. 
He stated: 

Some delegations had argued that only an international agree- 
ment signed by Governments would be legally binding. Inter- 
national agreements were not, however, the only sources of law. 
As stated in Article 38 of the Statute of the International Court 
of Justice, judicial decisions, international custom and other 
sources should also be taken into consideration. When a General 
Assembly resolution proclaimed principles of international law 
— as resolution 1721 (XVI) had done — and was adopted unani- 
mously, it represented the law as generally accepted in the in- 
ternational community. 276 
While it is clear that a unanimous resolution of the United Nations 
General Assembly may promulgate legal principles having binding 
force, it is also true that the same result would obtain if the docu- 
ment were entitled "declaration." This is true whether the declara- 
tion is signed or is not signed. 

Comparisons between declarations and treaties have sought to 
make the same distinction that has been attempted between resolu- 



275 This is set forth in U.N. Doc. A/C.6/L.505. 

276 zj.N. Doc. A/AC.105/C.2/SR.20, 11. 



203 

tions and treaties. Thus, the Australian delegate told the First Com- 
mittee on December 11, 1962, that he thought there was: 

* * * common ground that declarations by the General Assem- 
bly are not law-making in the sense that a treaty or a conven- 
tion is, although a declaration universally adopted and adhered 
to in practice may be valuable evidence of international custom, 
and hence a most important source of law. The point I make 
is that general acceptance, both by vote and in practice, is the 
essential requisite, if a resolution or declaration by the General 
Assembly is to be valuable in this way as a step in the making 
of law." 277 

Clearly, the juridical form taken by a document may have some 
legal significance, but it is submitted that participating states may 
through the appropriate consensus assign whatever legal import 
they may wish to any of the typical forms. In this connection it 
must be remembered that general principles have more frequently 
been found in resolutions and in declarations, or in declarations 
embodied in resolutions, and that detailed rules have more often 
been instituted through formal agreements and conventions. 

Possibly the best rationale for the Soviet concern for the use of 
declarations may be found in the statements of their delegate to the 
First Committee on December 3, 1962. In his view the role of inter- 
national law is "to regulate the activities of the co-operating par- 
ties." 278 Thus, it is, in his view, the function of both principles 
and rules to achieve this goal, and both may be used to impose 
sufficiently precise regulations. He then added : 

It is indubitable that it is very important to define, first 
of all, the main principles of this co-operation and then the 
concrete practical measures which would ensure success for such 
co-operation and which would prevent the possibility of a mis- 
understanding, of frictions and of actions that would be preju- 
dicial to the legal rights of any party. That is why the Soviet 
delegation deems that it is important to adopt a declaration on 
the main principles of activities of States in the study and use 
of outer space. 279 
Such regulation requires binding legal obligations, and so the Soviet 
argument has asserted that "if Governments really intended to 



27 7 U.N. Doc. A/C.1/PV.1298, 12-13. 

278 U.N. Doc. A/C.1/PV.1289, 48-50. 

27 9 Ibid. 



204 

observe certain principles of conduct in outer space, they would 
want to see those principles laid down in a declaration having the 
full force of an international treaty." 280 

The delegate from the UAR and the Canadian representative, 
among others, have also expressed themselves on the propriety of the 
available forms. According to the former, a decision to employ a 
declaration or a code depended upon the substance of the pro- 
posals. 281 The latter considered the formulation of principles for the 
guidance of states to be a solemn task and that since a declaration 
was a more formal document than a resolution that a declaration 
was particularly suited to a statement of basic principles. However, 
for rules, an even more formal procedure was required. In his view, 
rules had to take the form of binding treaties or conventions. 282 

On the basis of the foregoing review of positions advanced by 
scholars and by representatives at the United Nations, it is clear 
that international legal rights and duties may be set forth in varying 
forms. Thus, the international law of outer space, in addition to 
its customary foundation, may be found in international resolutions, 
declarations, and formal agreements. The latter may be entitled 
codes, conventions, treaties a or other suitable expressions. While all 
may have equal weight as sources of international space law, if so 
intended, there is a difference in the sense of their formality, with 
the least formal — but not necessarily less effective — being the unani- 
mous resolution of the General Assembly of the United Nations. 
More formal is the unanimous declaration of the same body, particu- 
larly when subscribed to in writing by all of the members of the 
United Nations, while most formal is the written agreement which 
has been subjected to the appropriate constitutional tests within 
the domestic areas of the numerous signatories. While it is a matter 
of choice as to which of the foregoing ought to be employed with 
respect to the principles and rules of international space law, it is 
clear that states are divided in their preferences as to the means 



2so M r Fedorenko to the legal subcommittee on April 19, 1963. U.N. Doc. 
A/AC.105/C.2/SR.17, 4. Compare the Polish viewpoint in U.N. Doc. A/AC.105/ 
C.2/SR.9, 5 and the Hungarian viewpoint in U.N. Doc. A/AC.105/C.21/SR.21, 4. 

28i U.N. Doc A/AC.105/C.2/SR.18, 3. 

282 U.N. Doc. A/AC.105/C.2/SR.21, 8. The Australian delegate told the sub- 
committee on April 29, 1963 : "A resolution or declaration by the General As- 
sembly, especially if universally adopted and adhered to in practice, might be 
valuable evidence of international custom, and hence a most important source 
of law. Nevertheless, a resolution or declaration of the General Assembly was 
certainly not law-making in the sense that a treaty, convention or declaration 
formally ratified by Government was." U.N. Doc. A/AG.105/C.2/SR.23, 4. 



205 

to establish such general principles. The major choice is between 
resolutions and declarations. The Soviet bloc constitutes an excep- 
tion and favors principles being set out in signed declarations and 
even treaties. On the other hand, it is clear that all states prefer to 
employ the formal agreement for the delineation of specific rules. 
However this preference as to form has no inherent legal signifi- 
cance, and, although not at all practical, it would be entirely legal 
to set out binding rules in the form of a resolution or declaration. 

On February 21, 1962, Chairman Khrushchev addressed a con- 
ciliatory letter to President Kennedy in order to extend his con- 
gratulations to Lieutenant Colonel John H. Glenn on the occasion 
of his successful space flight. In the letter he offered some hope of 
reestablishing the space discourse which he had neglected to pursue 
with President Eisenhower during the Spring of 1958. President 
Kennedy, in his reply, indicated that the two countries should 
"cooperate in the exploration of space" and that he would prepare 
concrete proposals for common action in the hope that a meeting 
might be arranged between appropriate officers motivated by "a 
spirit of practical cooperation." 283 

On March 7, 1962, President Kennedy again wrote the Soviet 
Premier listing five specific subjects which he considered within 
the range of practical cooperation. This letter corresponded with 
the March 1962 meeting of the U.N. Committee on the Peaceful 
Uses of Outer Space, and on March 19, the American representative 
distributed a copy of the letter to the entire committee. 284 This was 
in keeping with the United States policy of presenting its space 
claims to a forum broader than that of the two resource nations. 

The major United States proposals were: first, the joint establish- 
ment of an early operational weather satellite system; second, the 
establishment and operation of a radio tracking station in the Soviet 
Union employing United States equipment and a similar arrange- 
ment in the United States employing Soviet equipment; third, co- 
operation in mapping the earth's magnetic field in space through 
the use of two satellites in differing orbits; fourth, cooperation in 
testing experimental communications by satellite; fifth, the pooling 
of efforts and exchange of knowledge in the field of space medicine; 
and, sixth, such other cooperative activities as might prove feasible 



283 "President Kennedy to Chairman Khrushchev," 46 Department of State 
Bulletin 411 (1962). 

284 "Letter dated March 7, 1962 from President Kennedy addressed to Chair- 
man Khrushchev," 46 Department of State Bulletin 536 (1962) ; U.N. Doc. 
A/AC.105/1; 9 United Nations Review 37-38 (April 1962). 



206 

as the respective space programs of the two nations developed. 285 
Mr. Kennedy favored the free dissemination of information acquired 
through such efforts. His proposal included the view that such 
tasks, costs, and risks might be both minimized and shared. 

Premier Khrushchev replied on March 20, 1962, and his response 
was circulated to the General Assembly of the United Nations on 
March 21. He conditioned his concrete proposals by stating that he 
proceeded upon the premise that "all peoples, all mankind, are 
concerned with the task of exploring outer space and putting it 
to peaceful uses * * *" 286 He then expressed agreement with the 
Kennedy proposals in four instances, i.e., the latters first, third, 
fourth and fifth proposals, and also put forward a series of separate 
proposals. 

He favored cooperative activity regarding international long- 
distance communications systems. He accepted the concept of co- 
operation in the field of worldwide weather observation services by 
means of artificial satellites. He also agreed to cooperate in the 
preparation of charts of the earth's magnetic field and in the gen- 
eral field of space biology. His proposals suggested that it would 
be profitable to reach agreement "on the organization of a joint 
program for making observations by radio and by optical means 
on objects launched toward the moon, Mars, Venus and other planets 
in the solar system," and for cooperation in the study of "the physics 
of interplanetary space and celestial bodies." 287 He proposed the 
drafting and concluding of an international agreement providing for 
"assistance in search for and recovering space-ships, satellites and 
capsules which come down to earth by accident." 288 

Mr. Khruschev referred to the common approach taken at the 
United Nations when it adopted Resolution 1721 (XVI), and stated 
that this constituted a sign of progress for the formulation of "the 
initial principles of space law * * *" and proposed that there was 
an opportunity to go beyond these fundamentals. He urged the 
necessity of coming "to an agreement that, in carrying out experi- 
ments in outer space, no one should create obstacles to the study 
and use of space for peaceful purposes by other states. It should, 
perhaps, be specified that any experiments in outer space which 
may hinder the exploration of space by other countries should be 
the subject of preliminary discussion and of an agreement con- 



285 Ibid . 

286 U.N. Doc. A/AC.105/2; 9 United Nations Review 38-39 (April 1962). 
™ Ibid., 4. 

288 Ibid. 



207 

eluded on a proper international basis." 289 He also expressed the 
hope that through cooperative efforts and attitudes on the subject 
of outer space it would be possible to derive gains in the field of 
general and complete disarmament. These exchanges did bear fruity 
for they led to negotiation of the Dryden-Blagonravov understand- 
ing of June 8, 1962. 290 

When the inaugural meeting of the expanded U.N. Committee 
on the Peaceful Uses of Outer Space met in New York on March 
19, 1962, the American representative made broad references to the 
Kennedy letter to the Soviet government and expressed the hope 
that the Committee would be able to assist in the planning of "peace- 
ful uses of outer space." 291 He specifically called for international 
cooperation in the development of common legal doctrines and stand- 
ards for outer space insofar as that area had become important "for 
the future growth of international law." 292 He commented on the 
meaning of Resolution 1721 (XVI) saying that the provisions of 
part "A" had extended the rule of law to outer space, that under 
the resolution "We have rejected the concept of national sovereignty 
in outer space," and that since the principles were indeed sound 
ones that he wished "to re-endorse them heartily on behalf of the 
United States Government." 293 In his judgment these principles 
were practical and specific and constituted "the basic foundation of a 
legal regime for outer space." 294 On this foundation the United States 
then proposed that studies be undertaken on the subject of respon- 
sibility for space vehicle accidents and on the subject of "problems 
arising from the landing, by reason of distress or mistake, of space 
vehicles in the territory of other States." 295 This constituted the first 
of numerous subsequent efforts to translate the fundamental principles 
into specific binding rules of international law. 296 

The remarks of the United States delegate were also notable in 
two other respects. He stated that practical international space 
activities should not be carried on by the United Nations, but rather 
that they should be the product of national programs — involving 

289 Ibid., 5. 

290 infra, at pp. 230, 275-276. The agreement is set out in Annex 22, infra at pp. 
482-488. 

29i U.N. Doc. A/AC.105/PV.2, 9-10 ; Plimpton, "New Vistas for International 
Cooperation in the Peaceful Uses of Outer Space," 46 Department of State 
Bulletin 809 (1962). 

™ 2 Ibid., 12. 

™ 3 Ibid., 13-15. 

™*Ibid„ 33-35. 

295 Ibid. 

296 infra, pp. 211-390. 



208 

cooperative efforts with other nations — including private activities. 
He then referred to the legislation pending before the United States 
Congress calling for the establishment of a Commercial Satellite 
Corporation which was "intended to be the United States participant 
in a global system — a truly international arrangement with broad 
ownership and broad participation." 297 He pointed out that foreign 
countries would be permitted to cooperate in and to participate in 
the system which "within this decade will be for point-to-point 
relay between central installations in different countries, not for 
direct broadcast into people's homes." 298 The concept of a private 
corporation engaging in international communications activities was 
later to be subject to criticism by the Soviet government. 

On March 20, 1962, the Soviet delegate, Mr. Morozov, prior to 
his receipt of the Khrushchev note of that date, addressed the Com- 
mittee on the Peaceful Uses of Outer Space. In acknowledging the 
existence of the principles contained in part "A" of Resolution 1721 
(XVI) he stated that they signified "that the activities of the States 
in outer space research should be conducted in keeping with the 
recognized principles of peaceful coexistence, sovereignty, equality, 
non- aggression and non-interference in domestic affairs." 299 This 
contention, which pursued the uniquely Soviet notion of the guide- 
lines of international law — an emphasis which follows well-known 
Soviet policy goals — constituted the first of many subsequent Soviet 
efforts to provide an interpretation of the resolution. In extending 
his remarks he pointed out that "all States have equal rights to 
conduct independent research in space * * * [and that] no experi- 
ments are permissible in outer space, which might in any way 
make it difficult for other States to conduct cosmic research and 
exploration." 30 ° He referred to these contentions as "principles" 
although certainly they do not fall within the scope of that word 
as defined at the beginning of this Chapter, 301 nor as attested to 
by usage. It would be better to regard them as unilateral claims 
to be accepted or rejected by the international community through 
the customary or formal processes of the law. 

Mr. Morozov also put forward the "principle" or claim that no 
State was entitled to extend its jurisdiction to any part of outer 
space. 302 He also spoke of the need for international agreements 



297 Plimpton, supra, note 297, at 32. 
2 ™Ibid., 31. 

299 U.N. Doc. A/AC.105/PV.3, 23-25. 

300 Ibid., 26. 

301 Supra, pp. 124 ff. 

302 Morozov, supra, note 299, at 26. 



209 

on several matters, presumably after the legal subcommittee of 
the Committee on the Peaceful Uses of Outer Space had been pro- 
vided an opportunity to draft written agreements. In this category 
he included first, "assistance in the searching and salvaging of any 
space ships, sputniks and containers which might have to effect 
forced landings," second, "provisions which would prohibit such 
experiments as might obstruct or have a negative influence on 
research conducted by other countries — research in the interests of 
mankind — or which would create any kind of impediment or obstacle 
to exploration or utilization of outer space for peaceful purposes 
by other countries," third, that a "principle should be proclaimed 
according to which the penetration, exploration and utilization of 
outer space should be exercised by States whose Governments are 
entirely responsible for any activities in outer space," and, fourth, 
"juridical provisions to ensure the sovereign rights of States with 
respect to the various objects they are launching." 303 As to the last 
point he asserted that the launching state should be entitled to 
receive back objects coming to rest in other states, provided suitable 
information had been submitted to the United Nations by the 
launching state. 

He took some pains to point out why he had asserted the claim 
that space devices should be the product of public rather than private 
efforts. He considered that communications satellites might be 
employed "in order to harm people, to foster the cold war, and to 
aggravate international tensions * * * . It is necessary to work 
out juridical provisions which would prohibit any activities in outer 
space, such as the use of telecommunications or television satellites, 
which might be used for war propaganda or propaganda of racial 
animosity and hatred, and among peoples and nations." 304 

The tone of the Kennedy-Khrushchev letters caught the atten- 
tion of the members of the committee and thereby improved con- 
siderably the hopes that written agreements and international coop- 
eration for the peaceful uses of outer space might be achieved. The 
committee's activities were adjourned on March 29th so that two 
subcommittees, legal and scientific and technical, might meet in 
Geneva on May 28, 1962. 

It was at this time that the United States proposed to the 18- 
nation Committee on Disarmament a Treaty on General and Com- 



3°3 IU&. 

304 IMd., 27. See pp. 211-390 infra for a comparison of these principles with 
those advanced by the United States, the United Kingdom, and the United Arab 
Republic. 



210 

plete Disarmament in a Peaceful World. 305 Thus, on April 18, 1962, 
a draft treaty affecting the uses of outer space was made public 
which provided that states should agree "not to place in orbit weapons 
capable of producing mass destruction." The draft also provided 
for agreement "to support increased international cooperation in 
peaceful uses of outer space in the United Nations or through other 
appropriate arrangements." S06 It also provided for advance notifi- 
cation of launchings and for the prelaunch inspection of space 
vehicles and missiles by an International Disarmament Organization 
and for the detection of unreported launchings. This proposal was 
supplemented on August 27, 1962, by a draft treaty prepared by 
the United States and the United Kingdom for signature by these 
two and by the Soviet Union providing an obligation to discontinue 
nuclear weapons tests in all environments. Article I b. provided 
for the parties to undertake "to refrain from causing, encouraging, 
or in any way participating in, the carrying out of nuclear weapon 
tests explosions anywhere." 307 

The admittedly close interrelationship between scientific, tech- 
nological, political, legal, and defense aspects of outer space very 
importantly conditioned the ongoing efforts in the United Nations 
to provide a substantial legal regime for that environment. These 
considerations manifestly affected the initiation of studied and 
cautious negotiations by the legal and by the scientific and tech- 
nological subcommittees of the Committee on the Peaceful Uses 
of Outer Space in Geneva, May 28 to June 20, 1962. In their care- 
ful deliberations the member states sought to implement the legal 
principles contained in Resolution 1721 (XVI). In the following 
months negotiations were conducted in the First Committee of the 
U.N., in the General Assembly, in such public international organi- 
zations as the International Telecommunications Union (ITU), the 
World Meteorological Organization (WMO), UNESCO, the World 
Health Organization (WHO), and in such private scientific agencies 
as COSPAR. In addition, the Economic and Social Council 
(ECOSOC) of the United Nations demonstrated an interest in the 
subject and cooperated with the other organs of the United Nations. 

During that period several issues of central importance developed. 
First, a general consensus developed that there were some practical 
matters affecting the peaceful uses of outer space in which states 

305 "United States Presents Outline of a Treaty on General and Complete 
Disarmament," 46 Department of State Bulletin 747 (1962). 

™*Ibid., 751. 

307 "Draft Treaty Banning Nuclear Weapon Tests in All Environments," 47 
Department of State Bulletin 411 (1962). 



211 

were in general agreement. Second, the Soviet Union, with gen- 
eral support by members of its bloc, announced its support of 
limitations upon the free and peaceful uses of outer space. Third, 
the United States tentatively advanced certain views for the control 
of some forms of space conduct, and at the same time rejected cer- 
tain Soviet claims for a restriction upon the peaceful uses of outer 
space. United States and Soviet differences were made known to 
the entire community, and this led both to the firming of positions 
and effort to arrive at a workable middle ground. During the same 
time it became clear that the Legal Subcommittee would be seriously 
affected in its deliberations by concern for political and defense con- 
siderations, while at the same time the members of the Scientific and 
Technological Subcommittee would arrive at many practical solu- 
tions to practical problems, and further, would begin to implement 
such decisions. 

The legal subcommittee during May and June, 1962, sought to 
achieve a consensus on a number of the points raised in the Kennedy- 
Khrushchev correspondence of the preceding March. The debates 
proceeded on the basis that the principles of part "A" of Resolution 
1721 (XVI) were suitable foundations upon which there might be 
developed legal rules relevant to outer space activity. The United 
States submitted two proposals. The first was entitled "Assistance 
to and Return of Space Vehicles and Personnel." 308 The second 
was entitled "Liability for Space Vehicle Accidents." 309 The two 
Soviet proposals were entitled "International Agreement on the 
Rescue of Astronauts and Spaceships Making Emergency Land- 
ings," 310 and "Declaration of the Basic Principles Governing the 
Activities of States Pertaining to the Exploration and Use of Outer 
Space." 311 The government of India also submitted a proposal 
which linked the subject of return of space vehicles and personnel 
with the subject of liability. 312 The government of Canada filed 
an assessment pointing to the fact that members of the Subcommittee 
had endorsed the need for an agreement fixing liability for space 
vehicle accidents. 313 No agreements were reached on any of the 
proposals submitted to the Subcommittee. 

When the whole Committee met from September 10 to 27, 1962, 
a fifth proposal entitled "Draft Code for International Co-operation 

3 08 U.N. Docs. A/AC.105/6, 6 ; A/AC.105/C.2/L.3. 

309 U.N. Docs. A/AC.105/6, 6 ; A/AC.105/C.2/L.4. 

310 U.N. Docs. A/AC.105/6, ^5 ; A/AC.105/C.2/L.2. 

311 U.N. Docs. A/AC.105/6, 3-4; A/AC.105/C.2/L.1. 

312 U.N. Docs. A/AC.105/6, 7 ; A/AC.105/C.2/L.5. and Corr. 1. 

313 U.N. Docs. A/AC.105/6, 8 ; A/AC.105/C.2/SR.13. 



212 

in the Peaceful Uses of Outer Space" was submitted by the United 
Arab Republic. 314 The whole Committee, also unable to come to 
specific agreements, submitted the proposals and records of its sec- 
ond session 315 to the General Assembly on September 27, 1962. 

During December, 1962, the First Committee received from the 
United Kingdom a "Draft Declaration of Basic Principles Govern- 
ing the Activities of States Pertaining to the Exploration and 
Use of Outer Space." 316 On December 8, 1962, the United States 
also circulated to the First Committee a "Draft Declaration of 
Principles Relating to the Exploration and Use of Outer Space." 31T 

The United States declaration of principles, after emphasizing 
the fact that it was in the common interest of all mankind to 
further the peaceful exploration and use of outer space, proposed 
seven principles to states for their guidance in the exploration and 
use of outer space. The first three of the principles were taken 
directly from General Assembly Resolution 1721 (XVI). Thus, 
they called first for free exploration and use by all states, on the 
basis of equal rights, of outer space and celestial bodies in conformity 
with international law. Secondly, the United States asserted as a 
principle the fact that states are bound by the relevant rules of 
international law and the relevant provisions of international treaties 
and agreements, including the Charter of the United Nations, in 
the exploration and use of outer space and celestial bodies. Third r 
it was the position of the United States that outer space and celestial 
bodies are not subject to national appropriation. The remaining 
four principles, which had been favorably received in the com- 
mittees of the United Nations dealt with assistance to space vehicle 
personnel, return of crew and vehicle to launching state, international 
responsibility and damage, and jurisdiction. Thus, the fourth United 
States principle provided that states "shall render all possible 
assistance to the personnel of space vehicles who may be the subject 
of accident or experience conditions of distress, or who may land 
by reason of accident, distress, or mistake. Space vehicle personnel 
who make such a landing shall be safely and promptly returned to 
the launching authority." 318 



314 U.N. Doc. A/5181. Annex 14, infra, p. 463. 

sis U.N. Doc. A/AC.105/PV. 10-16. 

sie u.N. Doc. A/C.l/879. Annex 18, infra, p. 469. 

3i7 u.N. Doc. A/C.l/881. Annex 10, infra, p. 459. The meaning of the draft was 
explained in detail by Senator Gore to the First Committee on December 10, 
1962. U.N. Doc A/C.1/PV.1296, 2-12, 

3i8 ibid., 2. 



213 

The fifth United States principle provided that "States shall 
return to the launching authority any space vehicle or part that 
has landed by reason of accident, distress, or mistake. Upon request, 
the launching authority shall furnish identifying data prior to 
return." 319 The sixth principle called for the establishment of 
liability on the part of a state or international organization from 
whose territory or with whose assistance or permission a space 
vehicle is launched when harm was produced by the launch. Such 
a state or international organization "bears international respon- 
sibility for the launching, and is internationally liable for personal 
injury, loss of life, or property damage caused by such vehicle on 
the earth or in air space." 320 Pursuant to the final principle, jurisdic- 
tion over a space vehicle "while it is in outer space shall be retained 
by the State or international organization which had jurisdiction 
at the time of launching. Ownership and property rights in a space 
vehicle and its components remain unaffected in outer space or upon 
return to the earth." 321 

The First Committee of the General Assembly considered the 
efforts of the Committee on the Peaceful Uses of Outer Space during 
December, 1962. The First Committee concerned itself primarily 
with a draft resolution dealing with international cooperation in 
the peaceful uses of outer space which had been submitted by the 
United States on November 29, 1962. 322 By December 11, 1962, the 
United States draft had been co-sponsored by twenty-three other 
states, including the Soviet Union, and was unanimously adopted 
by the committee. 323 This document was then referred to the Gen- 
eral Assembly and on December 19, 1962, was unanimously adopted 
as Resolution 1802 (XVII), "International co-operation in the peace- 
ful uses of outer space." 324 

Resolution 1802 broadly seeks to facilitate the implementation 
of legal principles promulgated in Resolution 1721 (XVI). The 
1962 resolution, after recalling Resolution 1721, set forth both the 
grounds for and the areas in which further development of inter- 
national space law might develop. 



319 IUd. 
™IUd., 3. 
32i IUd. 

322 U.N. Doc. A/C.1/L.320. This should not be confused with the later United 
States Draft Declaration of Principles of December 8, 1962. Annex 10, infra, 
pp. 459-460. 

323 U.N. Doc. A/5341, 2. 

324 U.N. Doc. A/RES/1802 (XVII). Annex 3, infra, pp. 446-450. 



214 

The 1962 resolution recited the unanimous belief of the members 
of the United Nations that the "activities of States in the explora- 
tion and use of outer space should be carried out in conformity 
with international law including the Charter of the United Nations, 
in the interest of friendly relations among nations." In its operative 
portions it expressed regret that recommendations on legal questions 
had not been received. It thereupon called upon member states to 
cooperate in the "further development of law for outer space." It 
then requested the Committee on the Peaceful Uses of Outer Space 
to continue on a basis of urgency to elaborate more specifically cer- 
tain areas of law relating to outer space. These areas were four 
in number, and are set forth in Resolution 1802 in the following 
order, although the order of statement was not to be considered 
as a delineation of priority by the United States delegate: "The 
further elaboration of basic principles governing the activities of 
States in the exploration and use of outer space, on liability for 
space vehicle accidents and on assistance to, and return of, astronauts 
and space vehicles, as well as other legal problems." 325 The General 
Assembly instructed the Committee on the Peaceful Uses of Outer 
Space to take into account the various drafts referred to above as 
well as all other proposals and documents presented to the General 
Assembly during its debates on this subject, including the records 
of those debates. 

With this directive confronting it the Committee, through its 
subcommittee on legal matters, reconvened early in 1963 to consider 
suitable approaches to legal problems of outer space. The con- 
ditions were not particularly favorable for productive discussions. 
Illustrative of this fact were sterile discussions lasting through March 
as to where future meetings were to be held. 

Soviet limitations to the legal principles contained in Resolution 
1721 (XVI) were first presented to the legal subcommittee at its 
Geneva meeting, 28 May-20 June 1962, in the form of a declaration 
of basic principles governing the activities of states pertaining to 
the exploration and use of outer space. 326 In an amended and 
modified form the Soviet proposals were placed before the Legal 
Subcommittee of the Committee on the Peaceful Uses of Outer 
Space on April 16, 1963. 327 The Soviet proposals were intended 
to serve as an alternate to those submitted to the subcommittee by 



3-'5 Ibid. 

326 u.N. Doc. A/AC.105/C.2/L.1 ; U.N. Doc. A/AC.105/6, 3-4. 

327 u.N. Doc. A/AO.105/C.2/L.6. Annex 16, infra, pp. 466-468. An explanation 
of their meaning was made by Mr. Fedorenko on April 17, 1963. U.N. Doc. 
A/AC.105/C.2/SR.17. 



215 

the United States on December 8, 1962. 328 The Soviet proposals of 
April 16, 1963, embodied some of the proposals submitted by other 
states, particularly some of those contained in the draft declaration 
of basic principles prepared by the United Kingdom and the draft 
code prepared by the United Arab Republic. There was some 
similarity of language in the last Soviet proposal and the United 
States "Draft Declaration of Principles Relating to the Exploration 
and Use of Outer Space" of December 8, 1962. 

Common subjects were mentioned, but the Soviet proposal was 
longer and varied considerably from the principles put forward 
by the United States. They were fundamentally different in approach. 
The United States had also previously submitted detailed draft 
proposals on assistance to and return of space vehicles and personnel 
and liability for space vehicle accidents. More importantly, the 
United States sought the approval of its principles in the form 
of a resolution of the United Nations, whereas the Soviet Union 
urged its proposals in the form of a declaration of the United 
Nations, to be followed by signatures as in the case of a treaty or 
international convention. Further, the Soviet set of principles pro- 
posed limitations upon the peaceful uses of outer space, which had 
not been contemplated in the proposals of the United States. The 
Soviet principles by reason of their detail introduced subjects into 
the space debate which were not at all material to its broadest and 
most beneficial uses. 

Both proposals in their respective introductory language recog- 
nized "the common interest of all mankind" in furthering the "peace- 
ful exploration and use of outer space" according to the United 
States proposal, 329 and "in the progress of the exploration and use 
of outer space for peaceful purposes" pursuant to the Soviet draft. 330 
The British Draft Declaration of Basic Principles, which had been 
filed with the First Committee on December 4, 1962, did not contain 
a preamble. 331 

The United States and the Soviet drafts were identical in believing 
"that the exploration and use of outer space should be for the 

328 XJ.N. Doc. A/O.l/881. Annex 10, infra, pp. 459-460. 

329 U.N. Doc. A/0.1/881, 2-3. This citation covers all of the immediately fol- 
lowing references to the United States Draft Declaration of Principles of 
December 8, 1962. Annex 10, infra, pp. 459-460. 

™°U.N. Doc. A/AC.105/C.2/L.6, 1-3. This citation covers all of the imme- 
diately following references to the Soviet Draft Declaration of Basic Principles 
of April 16, 1963. Annex 16, infra, pp. 460-468. 

33i V.N. Doc. A/C.l/879. This citation covers all of the immediately follow- 
ing references to this document. Annex 18, infra, pp. 469-470. 

791-^05—66 15 



216 

betterment of mankind and to the benefit of States irrespective of 
the stage of their economic or scientific development." Identical 
language provided "that such co-operation will contribute to the 
development of mutual understanding and to the strengthening of 
friendly relations among nations and peoples." 

The preamble of the United Arab Republic draft code of Septem- 
ber 1962, which had been deposited because of an acknowledged 
need to promote "international cooperation in the peaceful explora- 
tion and uses of outer space," considered the United Nations to be 
the focal point for such activity. 332 The UAR preamble asserted that 
it was "imperative in the interests of mankind that activities in 
outer space should be exclusively devoted to the peaceful uses of 
outer space," and the first operative paragraph asserted that "the 
activities of Member States in outer space should be confined solely 
to the peaceful uses." 

All proposals made reference to Resolution 1721 (XVI), whereas 
the Soviet draft, coming after the adoption of Resolution 1802 
(XVII), noted the latter also and recited that both resolutions had 
been adopted unanimously. The United States preamble made ref- 
erence to "the great importance of international cooperation in this 
field of human activity," whereas the Soviet noted the desirability 
of promoting "broad international cooperation in the exploration 
and use of outer space for peaceful purposes." This theme was 
enlarged on in paragraph 2 of the UAR proposal, which indicated 
"That in their policies toward outer space Member States should 
promote international and peaceful cooperation." The UAR draft 
devoted much attention to this position. Thus, paragraphs 6, 7, 8, 
and 9 suggested as guidance for committee work : 

6. That one of the main objectives in international peaceful 
cooperation in outer space is to develop special programmes in 
which the developing countries can participate with a view to 
promoting world-wide interest in outer space ; 

7. That Member States agree to make full use of the facilities 
and experience of all international organizations, specialized 
agencies and non-governmental organizations, which have activi- 
ties in outer space ; 

8. That Member States will exert every possible effort to pro- 
vide the United Nations Secretary-General, on a voluntary basis, 
with all information necessary for the promoting of interna- 
tional cooperation in the peaceful uses of outer space; 

332 u.N. Doc. A/AC.105/L.6 ; U.N. Doc. A/5181. This citation covers all of 
the immediately following references to this document. Annex 14, infra, pp. 
463-464. 



217 

9. That Member States undertake to give all possible assist- 
ance to the United Nations and its affiliated organizations, to 
undertake joint programmes of training and research to promote 
science and technology in outer space. 

Additionally, the Soviet draft preamble acknowledged "the great 
prospects opening up before mankind as a result of penetration into 
outer space," and borrowed from the preamble of the UAK draft 
which had noted the interrelationship of the technical and legal 
aspects of the activities of states in outer space. The UAR preamble 
recited the need for a framework to guide the future space activities 
of the Committee on the Peaceful Uses of Outer Space, and urged 
that its work might help to "save succeeding generations from the 
scourge of war." 

The difference in the United States and Soviet approaches was 
set forth in the following opposing drafts. The United States pre- 
amble commended "to States for their guidance in the exploration 
and use of outer space the following declaration of principles * * *", 
whereas the Soviet preamble called for a signed declaration whereby 
states "solemnly declare that in the exploration and use of outer 
space they will be guided by the following principles * * *." 

The substantive principles illustrate similarities and dissimilari- 
ties. Paragraph 1 of the United States draft provided that "outer 
space and celestial bodies are free for exploration and use by all 
States, on the basis of equal rights, in conformity with international 
law." The first sentence of paragraph 1 of the British draft is 
identical, except no reference was made to "on the basis of equal 
rights." 

Paragraph 2 of the Soviet draft provided (after having indicated 
in paragraph 1 that "The exploration and use of outer space shall 
be carried out for the benefit and in the interests of mankind.") 
that "Outer space and celestial bodies are free for exploration and 
use by all States * * *" The Soviets then added in paragraph 2 
that "sovereignty over outer space or celestial bodies cannot be 
acquired by use or occupation or in any other way." The addition 
took into account the British basic principles, which had sought to 
distinguish clearly between freedom to do certain things in space 
or freedom from controls, from types of activity where control 
might be expected. In the present context the British draft pro- 
vided in paragraph 2 that "Outer space and celestial bodies are not 
capable of appropriation or exclusive use by any State" and then 
added "Accordingly, no State may claim sovereignty over outer 
space or over any celestial body, nor can such sovereignty be acquired 
by means of use or occupation or in any other way." This view 



218 

conforms to the principle contained in paragraph 3 of the United 
States draft of principles which provided that "Outer space and 
celestial bodies are not subject to national appropriation." 

The United States, the Soviet, and the United Kingdom drafts 
recognized the application of the UN Charter and international law 
to specified activities in outer space. Thus, paragraph 2 of the 
United States draft recited that "In the exploration and use of 
outer space and celestial bodies, States are bound by the relevant 
rules of international law and the relevant provisions of interna- 
tional treaties and agreements including the Charter of the United 
Nations." The British draft confirmed this view in paragraph 3, 
by providing that "In the exploration and use of outer space and 
celestial bodies States are bound by international law and by the 
provisions of the United Nations Charter and other international 
agreements which may be applicable." 

The Soviet proposal, paragraph 4, stated that "The activities of 
States pertaining to the conquest of outer space shall be carried out 
in accordance with the principles of the United Nations Charter and 
with other generally recognized principles of international law in 
the interests of developing friendly relations among nations and of 
maintaining international peace and security." In this proposal the 
Soviets, by the use of the word "conquest," substituted a new 
expression for the previously accepted language of "exploration and 
use" used in the various UN debates. Paragraph 4 of the Soviet 
proposal also endeavored to emphasize the role of "security" and, 
at least on the surface, appeared, through reference to general prin- 
ciples of international law, to make concessions to the concept of 
general customary international law — although it is probable that 
stronger evidence than is contained in the foregoing paragraph will 
be required to support the view that the Soviets have given up 
their traditional distrust of the role of customary law. 

The Soviets, as is well known, have stressed the view that inter- 
national law must take into account, not only national security, but 
also the sovereign equality of states. Having worked the notion of 
sovereignty into paragraph 2 of their proposal, they thereupon made 
reference to equality in paragraph 3 : "All States have equal rights 
to explore and use outer space." The British proposal, paragraph 
4, extended the Soviet view, in that it opened the possibility that 
individuals as well as states could possess rights to explore and use 
space. The British paragraph provided "All States, shall, for them- 
selves and for their nationals, have equal rights in the exploration and 
use of outer space. These rights shall be exercised in accordance 



219 

with international law and with the principles affirmed in this 
Declaration." 

All of the drafts, except the British, made reference to such prac- 
tical matters as liability, assistance, and return. Thus, the UAR 
draft, paragraphs 3 through 5, made provision that: 

Member States bear special responsibility emanating from 
their obligations to secure the safety of space for astronauts in 
outer space. 

Member States agree to provide every possible assistance to 
personnel of space vehicles who may be the subject of accident 
or experience conditions of distress or who may land by reason 
of accident, distress or mistake. 333 

Member States undertake to return to the State or interna- 
tional organization responsible for launching space vehicles these 
space vehicles and its personnel. 

Paragraph 4 of the United States draft deals with assistance to 
be rendered to personnel who return to earth in space vehicles. 
Paragraph 6 of the Soviet draft, while making reference to "assist- 
ance" does not recite the rights of returning personnel, 334 and, in 
fact, puts forward a very broad limitation upon national exploration 
and use of outer space. The Soviet proposal provided: 

Co-operation and mutual assistance in the conquest of outer 
space shall be a duty incumbent upon all States; any measures 
that might in any way hinder the exploration or use of outer 
space for peaceful purposes by other countries may be imple- 
mented only after prior discussion of and agreement upon meas- 
ures between the countries concerned. 335 



333 for an analysis of legal aspects of aerial distress, see Lissitzyn, "The 
Treatment of Aerial Intruders in Recent Practice and International Law," 47 
AJ.I.L. 564 (1953). 

334 The United States had previously submitted a draft proposal on this 
subject, U.N. Doc. A/AC.105/L.4, infra, pp. 211-212, as had the Soviet govern- 
ment, U.N. Doc. A/AC.105/L.3, infra, pp. 211, 279n, 287. 

sss u.N. Doc. A/AC.105/G.2/L.6. United States policy on this subject had 
been stated by Senator Gore to the First Committee on December 3, 1962 : "The 
United States believes that nations which conduct activities in outer space 
should take all reasonable steps to avoid experiments or other activities which 
seriously threaten to deny or to limit the use of outer space to other nations. 
This is consistent with well established principles of international law. We 
encourage prior international discussion concerning experimental activities in 
space which may have undesirable effects, and my Government is prepared in 
the future, as in the past, to consult with scientists of other countries as well 
as United States scientists wherever practicable and consistent with our 
national security." U.N. Doc. A/C.1/PV.1289, 17. 



220 

The enormity of this proposal may be noted from both the legal 
and the political point of view. After 1957, usage had crystallized 
around the legal concept that outer space might be used for peaceful 
purposes without hindrance. This view was based on the general 
legal proposition that such conduct was engaged in as a right on 
the proposition that all peaceful conduct was permitted until specif- 
ically prohibited. Prior to this Soviet proposal this principle had 
not been challenged. The Soviet proposal, however, would reverse 
the traditional presumption and would suggest that peaceful, i.e., 
nonaggressive and beneficial, uses might not be engaged in until 
after the consent of "the countries concerned,'' itself a vague con- 
cept. From the political point of view the Soviet proposal would 
enable a state to veto the conduct of another state on undefined, and 
probably undefinable, grounds. 

The United States made provision in paragraph 5 for the return 
to a launching authority of space vehicles or parts which had landed 
by reason of accident, distress, or mistake. The term "launching 
authority" was selected to serve as generic enough to take into 
account such legal entities as states and international organizations. 
The duty to return, however, was that of states. 

The Soviet Union proposed a similar legal rule. Prefixing their 
proposal, paragraph 10, with the view that states "shall regard 
cosmonauts as envoys of mankind in outer space and shall render 
all possible assistance to spaceships and their crews which may make 
an emergency landing on the territory of a foreign State or on the 
high seas * * * ," the Soviets went on to provide that "spaceships, 
satellites or capsules found beyond the limits of the launching State 
shall be returned to that State." 

The United States made provision in paragraph 6 for liability 
on the part of states or international organizations from whose 
territory or with whose assistance or permission a space vehicle was 
launched. The Soviets proposed in paragraph 11 that only a state 
should undertake space activities and noted that a "State under- 
taking activities in outer space bears international responsibility for 
damage done in a foreign State or to its physical or juridical persons 
as a result of such activities." The proposal of the United States 
encompasses liability for "personal injury, loss of life, or property 
damage caused by such vehicles on the earth or in air space," but 
made no reference to liability in outer space. 

There is some semblance of agreement between the United States 
and Soviet proposals in the areas of jurisdiction and ownership of 
vehicles. The United States draft, paragraph 7, called for jurisdic- 



221 

tion over a space vehicle while it is in outer space on the part of 
the state or international organization which possessed, jurisdiction 
at the time of launch. The Soviet proposal, paragraph 8, rejecting 
the view that a launch might be accomplished by an international 
organization, provided that national states shall retain their "sover- 
eign rights over objects they launch into outer space." Paragraph 7 
of the United States draft and paragraph 8 of the Soviet draft are 
almost identical in their provision for ownership. According to the 
United States, "Ownership and property rights in a space vehicle 
and its components remain unaffected in outer space or upon return 
to the earth." The Soviets accepted this view by making provision 
that "Eights of ownership in respect of objects launched into outer 
space and their components remain unaffected while they are in 
outer space and upon their return to earth." 

A number of unresolved problems may arise on the basis of these 
foregoing provisions, but the difficulties would not appear to be 
insuperable, assuming tolerance and good will on the part of the 
differing states or international organizations. However, the Soviet 
proposal contained three paragraphs, (5, 7, and 9), which injected 
critically different social, economic, and political considerations into 
efforts to both facilitate and control the peaceful uses of outer space. 
These paragraphs follow: 

5. The use of outer space for propagating war, national or 
racial hatred or enmity between nations is inadmissible. 

7. All activities of any kind pertaining to the exploration and 
use of outer space shall be carried out solely by States. If States 
undertake activities in outer space collectively, either through 
international organizations or otherwise, each State partici- 
pating in such activities has a responsibility to comply with 
the principles set forth in this Declaration. 

9. The use of artificial satellites for the collection of intel- 
ligence information in the territory of a foreign State is incom- 
patible with the objectives of mankind in its conquest of outer 
space. 

In referring generally to the ideas contained in paragraph 5 and 
9, the Italian delegate pointed out to the legal subcommittee on 
April 24, 1963, that they constituted points of disagreement and that 
such proposals "did not really hinge on problems directly related to 
the use and exploration of outer space." 336 The same comment 
applies with equal validity to paragraph 7 of the Soviet proposals. 

sse u.N. Doc. A/AC.105/C.2/SR.20, 3. 



222 

The Soviet position has been built consistently around five concepts 
which are central to their policies and their understanding and use 
of international law. Mr. Morozov, as previously noted, in speaking 
to the Committee on the Peaceful Uses of Outer Space, on March 
20, 1962, sought to construe General Assembly Resolution 1721 
(XVI) in the light of these Soviet views. He urged that "the 
principles which have already been approved by the General Assem- 
bly signify in our view, that the activities of the States in outer 
space research should be conducted in keeping with the recognized 
principles of peaceful coexistence, sovereignty, equality, nonaggres- 
sion and noninterference in domestic affairs." 337 And he added, 
"These important principles and provisions should be studied and 
should become a basis for the work of the juridical subcommit- 
tee." 338 It was at this time that he urged the acceptance of the 
propositions which are not contained in paragraphs 5, 7, and 9 of 
the Soviet draft of April 16, 1963. 

Mr. Kiselev, representing the Byelorussian SSR, speaking before 
the First Committee on December 10, 1962, again called attention 
to the belief that "international co-operation in the conquest of outer 
space * * *" would have to be solved "by respecting such generally 
recognized principles as the principle of peaceful coexistence, respect 
for the sovereignty of States, nonaggression, noninterference in the 
internal affairs of countries, and equal rights." 339 

The Soviet Union by joining in the sponsorship of Resolution 
1721 (XVI), and assuring its unanimous adoption not only through 
its own vote but also those of the Soviet bloc, gave its approval to 
a set of principles applicable particularly to peaceful, i.e., non- 
aggressive and beneficial, uses of outer space. Since December 1961, 
the proper role of states engaged in negotiations in the United 
Nations forum on the legal status of outer space has been to reduce 
the previously acknowledged principles into a set of working rules. 
In a substantive sense, this has become the problem of controlling 
or qualifying the promulgated freedom of use and exploration within 
a framework of general principles. 

Such control, by its very nature, must encourage certain types of 
space activity, and must also discourage or inhibit other kinds of 
space activity. In arriving at a decision as to permitted and non- 
337 u.N. Doc. A/AC.105/PV.3, 2S-25. 

338 Ibid . 

339 U.N. Doc. A/C.1/PV.1297, 13. These views have long been current in the 
Communist world. Compare the terms of the treaty of April 29, 1954, between 
Red China and the Republic of India. See also, Lissitzyn, "The Soviet View 
of International Law," 14 Naval War College Review 1 (1961). 



223 

permitted conduct, nation-states will, of necessity, be required to 
take into account such beneficial factors as freedom of exploration 
and use, but must also take into account the needs of international 
peace and security and national defense. The latter, of course, must 
be measured on the basis of the fact that the physical location of an 
orbiting space vehicle has no direct bearing on the amount of good 
or the amount of harm that it may produce. Thus, a space vehicle 
need not be superjacent to a given state in order to observe what is 
going on below, just as it would not be necessary for a space plat- 
form to be superjacent to a state prior to its use in connection with 
nonpeaceful, i.e., aggressive and nonbeneficial purposes. In view of 
these facts, Johnson has stated "What is required is some form of 
international control directed toward specific space activities, regard- 
less of the location of their occurrence." 34 ° This viewpoint, which 
reflects United States policy, is based on the need to establish prac- 
tical answers for real problems. The draft proposals urged by the 
United States provide evidence of this approach. However, the 
United States, along with other states, has avoided the formulation 
of a detailed code at this time. Moreover, the United States, along 
with other states, as previously pointed out, has been willing to 
propose and to discuss comparable proposals made by other states 
looking to an acceptance of principles extended beyond the terms of 
Resolution 1721 (XVI). 

The position of the United States has been to accept the concept 
of control, within the reasonable context of national interest, and 
subject to the concepts of freedom contained in Resolution 1721 
(XVI). It has sought to achieve an orderly, and hopefully, peace- 
ful, i.e., nonaggressive and beneficial, legal structure for outer space. 
As Senator Gore pointed out to the First Committee on December 
3, 1962, the "United States policy and United States programmes 
for outer space are peaceful in intent, co-operative in practice and 
beneficial in operation." 341 This has resulted in a willingness to 
achieve controls respecting the use of radio frequencies, the estab- 
lishment of rules of liability, the achievement of agreement on the 
return of personnel and equipment, and, additionally, such prin- 
ciples as would contribute to the advancement of the peaceful, i.e., 
nonaggressive and beneficial, uses of outer space. Such control may 
be secured through the UN forum insofar as its program takes the 
Charter and international law for the standard for space activities. 

340 Johnson, "The Future of Manned Space Flight, and the 'Freedom* of 
Outer Space," NASA News Release, August 4, 1962, 5. 

341 U.N. Doc. A/C.1/PV.1289, 32. 



224 

As a result of this, "mankind would * * * be free to use space on 
the same basis as it uses the high seas — free of any restraints except 
those on exclusive use and illegal activity such as aggression." 342 
At the time of this writing, the April-May 1963, discussions of 
th legal subcommittee of the Committee on the Peaceful Uses of 
Outer Space have been concluded. As a result of the political-legal 
claims advanced in this forum, and the generally ardent support 
for the principles previous^ promulgated through the United 
Nations, certain conclusions may be stated. 

1. The broad principles contained in Resolutions 1348 (XIII), 
1721 (XVI), and 1802 (XVII) of the General Assembly continue 
to have the general approval of UN members, particularly the 
strong affirmative support of the Western states. 

2. It was universally recognized that it was highly desirable to 
extend such principles and to develop suitable rules respecting outer 
space activities. 

3. There was very broad agreement as to the specific rules which 
were needed. 

4. There was substantial agreement as to detail regarding the 
substance of additional principles, although there was substantial 
disagreement respecting proposals advanced by the Soviet bloc con- 
cerning the instrumentalities by which space activity could be con- 
ducted, as well as substantial disagreement respecting the Soviet 
proposal dealing with observational activities. 

5. While there was a profound recognition of the fact that a law 
of outer space was emerging and although there was a somewhat 
diminishing difference as to whether it should be put forward in 
the form of resolutions, declarations, or treaties, there was still a 
strong difference as to whether the substance should find expression 
as principles or as rules, and whether priority should be assigned 
to the principles or the rules. 

6. It was well understood that political considerations had been 
introduced into the legal discussions and it was clear that states 
would have to measure their expectations in terms of their political 
goals and willingness to engage in political "give and take." 

7. Despite differences, the content of space law continued to 
harden, and, additionally, scientific and technological working agree- 
ments were reached between the two major space powers. 

The most important result of UN deliberations has been the 
revitalization of the principle first promulgated on December 13, 



342 Gardner, "Cooperation in Outer Space," 41 Foreign Affairs 345 (1963). 



225 

19-58, in the form of General Assembly Eesolution 1348 (XIII). 
That resolution stated in the first paragraph of its preamble that 
the General Assembly recognized "the common interest of mankind 
in outer space and that it is the common aim that it should be used 
for peaceful purposes only * * *" 343 Not until the United Arab 
Republic submitted in 1962, its Draft Code for International Coop- 
eration in the Peaceful Uses of Outer Space was serious attention 
given, by countries other than the United States, to the principle 
that such uses should be solely or exclusively for peaceful purposes. 
Paragraph 1 of this draft called for states to be guided by the 
principle that "the activities of Member States in outer space should 
be confined solely to the peaceful uses. * * *" Lest there be any 
mistake, the preamble also referred to the fact that "activities in 
outer space should be exclusively devoted to the peaceful uses of 
outer space." 344 Speaking on May 3, 1963, the Indian delegate told 
the legal subcommittee that several delegations had expressed sup- 
port for that principle and that "It was regrettable that no agree- 
ment had been reached on the one principle which his delegation 
had hoped would be universally accepted — the principle that outer 
space should be used solely for peaceful purposes." 345 A few minutes 
later, Mr. Meeker, speaking on behalf of the United States, which 
had voted in favor of Resolution 1348 (XIII), stated that the United 
States had always supported the principle that outer space should 
be used solely or exclusively for peaceful purposes. His exact words 
were that "his delegation wished to place on record the fact that the 
basic ideas in the draft code submitted by the United Arab Republic 
(A/AC.106/L.6) represented propositions to which the United States 
Government had been committed from the beginning of the space 
age." 346 Mr. Timerbaev of the Soviet Union, speaking next, stated, 

343 II Documents on Disarmament 1305 (1945-1959); Annex 7, infra, pp. 
456-458. 

344 U.N. Doc. A/AC.105/L.6 ; U.N. Doc. A/5181, Annex 3, 7. 

345 U.N. Doc. A/AC.105/C.2/SR.28, 6. 

346 Ibid., p. 9. It should be recalled that President Eisenhower wrote to 
Premier Bulganin on January 12, 1958, "I propose that we agree that outer 
space should be used only for peaceful purposes," 38 Department of State 
Bulletin 126 (1958) ; that on January 16, 1958, Secretary of State Dulles, 
stated that the President had "advanced the most significant proposal that 
could be made at this time to assure human survival, namely, that outer space 
should be used only for peaceful purposes." "The Role of Negotiation," 38 
Department of State Bulletin 162 (1958) ; and that on September 18, 1948, 
he told the General Assembly that "We must make every effort to dedicate 
outer space exclusively to constructive pursuits." "Problems of Peace and 
Progress," 39 Department of State Bulletin 528 (1958). These statements 



226 

"The Soviet Union had always maintained that outer space should 
be used solely for peaceful purposes." 347 In view of the fact that the 
Soviet Union had led the Soviet bloc in opposition to, and had voted 
against, Eesolution 1348 (XIII), this statement was important. 
Even so, by announcing that it would be guided by this principle, it 
failed to assume a position as firm as that of the United States — 
that of being committed to the principle. Following the Soviet 
change of position, the representative of the UAH observed that 
the acceptance of this principle was "necessary for progress towards 
the adoption of other principles." 348 

Several delegates, in undertaking to assess the achievements of 
the subcommittee's activities, pointed to the need for states to con- 
sider the political aspects involved in endeavoring to satisfy the 
claims of states for the legal order of space activities. Thus, Mr. 
Meeker noted that the committee members "should be prepared to 
engage in the give and take of international discourse and to make 
adjustments in their positions in order to achieve a consensus." 349 
The Austrian delegate suggested that "What was lacking was not 
agreement but the will to record it." 350 

A number of delegates, even before the Soviet delegate had 
acknowledged that outer space ought to be used solely for peaceful 
purposes, had summarized the extent to which states were in agree- 
ment respecting both the substance of the law and the need to 
formulate specific agreements. On April 25, 1963, for example, the 
Australian member of the subcommittee had noted that there was 



should be compared with the position announced by Mr. Loftus Becker, legal 
advisor to the Department of State, who on June 9, 1958, made the following 
statement to the Special Senate Committee on Space and Astronautics: "The 
most immediate problem in the field of space foreign policy is how to insure 
that outer space is used for peaceful purposes only." He continued by stating 
that the United States was engaged in taking steps "to assure that missiles 
and other outer-space vehicles, already in the development stage, will be 
utilized solely for peaceful purposes." Becker, "Major Aspects of the Problem 
of Outer Space," Department of State Bulletin 962-963 (1958) ; Space Law, A 
Symposium, supra note 10, Chapter I, at 367-368. From the foregoing, it is 
abundantly clear that the United States has always supported the position that 
outer space should be used for peaceful purposes only. In doing so it has 
shaped the substance of the law of outer space. 

s* 7 Ibid., p. 13. 

3 **Ibid., p. 14. 

349 Ibid., p. 9. 

3 50 Ibid., pp. 3-4. 



227 

a substantial area of agreement on each of the subjects mentioned 
in Eesolution 1802 (XVII) . He then stated : 

There was complete agreement in broad principle that a 
State launching a space vehicle should be internationally liable, 
without fault, for injury, loss or damage caused by the vehicle 
on the earth or in the air space, and that States should be under 
a duty to render all possible assistance to the personnel of a 
space vehicle landing by accident, distress or mistake and to 
return to the launching State both personnel and vehicle. It was 
also apparent that an important measure of agreement existed 
concerning the further elaboration of basic legal principles 
governing the activities of States in the exploration and use of 
outer space. 351 

The Austrian delegate opined that there had been a unanimous 
consensus that a draft declaration of basic principles should contain 
four principles, namely: 

Outer space and celestial bodies were free for exploration and 
use by all States; sovereignty could not be acquired over outer 
space or celestial bodies; States were liable for damage caused 
by space vehicles; and assistance should be accorded to space 
vehicles in distress. 352 
He also noted that there was considerable agreement on the subject 
of prior consultations between states concerning experiments affect- 
ing outer space. 

The representative of the United States concurred that there was 
general agreement respecting rules and principles, both existing and 
proposed. As to the subject matter of formal agreement respecting 
rules, he stated that a treaty on assistance and return was recognized 
as appropriate. Further, it was his view that there had been agree- 
ment on the desirability, and to a large measure on the contents^ 
of a declaration of basic principles to guide states in their explora- 
tion and use of outer space. He added : 

Specifically, there was a consensus on the freedom of outer 
space for exploration and use by all States, on a basis of equality 
and in accordance with international law; on the immunity of 
celestial bodies from national appropriation; on the applicabil- 
ity of international law, including the United Nations Charter, 
to relations among States in outer space; on retention by the 



35i u.N. Doc. A/AC.105/C.2/SR.23, 3. 
352 zjtf. Doc. A/AC.105/C.2/SR.28, 3. 



228 

launching authority of jurisdiction over and ownership of 
space vehicles; on assistance to astronauts in distress and return 
of space vehicles and their personnel, and on liability for injury 
or damage caused by space vehicle accidents. 353 
He also pointed to the fact that the United States, as well as other 
states, had been willing — following the general lines of the Soviet 
draft proposal contained in their paragraph 6 — to engage in appro- 
priate international "consultation on problems of interference and 
contamination in outer space and of providing for discussion of 
particular proposed projects." 354 He rejected the proposal contained 
in paragraph 7 of the Soviet proposal, which would have required 
that space activities be restricted to state vehicles, but acknowledged 
that the debate had "disclosed a widely shared recognition of the 
fact that Governments bore responsibility and were accountable for 
national space activities." 355 

The Soviet delegate called attention to the fact that the United 
States had declined to discuss paragraphs 5 and 9 of the Soviet draft. 
He stated that "The United States delegation had not even men- 
tioned many important issues which had been raised in the Subcom- 
mittee, such as the question of the prohibition of the use of artificial 
satellites for the collection of intelligence information and the inad- 
missibility of the use of outer space for propagating war, national 
or racial hatred or enmity between nations." 356 Many of the dele- 
gates had pointed to the controversial nature of these Soviet pro- 
posals, with many expressing the view that the use of observation 
satellites was within the range of peaceful, i.e., nonaggressive and 
beneficial, purposes and not interdicted by international law. 357 
Other delegates thought that the subject might better be discussed 
in the context of disarmament. Many states held that the Soviet 
proposal dealing with the use of satellites for purposes of war 
propaganda had failed to take into account the definite provisions 
of the unanimous General Assembly Resolution 110 (II), which 



^ z Ibid., p. 9. The assertion by the Czechoslovakian delegate that "There 
had been no general agreement on such fundamental principles as the freedom 
and equal right of all States to explore and use outer space" seems to be 
entirely erroneous. Ibid., p. 7. 

as* Ibid. 

355 Ibid. 

356 Ibid., p. 13. 

357 The Soviet bloc, speaking through Hungary, has urged that the use of 
reconnaissance satellites constituted a delict under international law. See 
infra, pp. 271-295 for a detailed discussion of this problem. 



229 

had stated that communications facilities should not be employed 
for war propaganda purposes. 358 

In resume, it may be said that several clearly distinguishable 
legal principles respecting outer space have been almost universally 
recognized. Of first importance has been the decision of nations, 
particularly the two major resource states, that in principle outer 
space must be used exclusively or solely for peaceful, i.e., nonag- 
gressive and beneficial, purposes. Secondly, there has been almost 
universal acceptance of the principle that outer space is open to 
the free use and exploration of all nations. Third, there is almost 
universal agreement that neither outer space nor celestial bodies fall 
within the sovereignty of any state, and that they may not be made 
the subject of national appropriation. Fourth, there is almost uni- 
versal agreement that outer space falls within a regime of structure 
of law, and that man's activities in his environment are governed 
by the principles and rules of international law and by the Charter 
of the United Nations. Finally, there is remarkable consensus that 
there is the need to enter into treaties covering a number of detailed 
rules relating to the safety, return, and liability of space vehicle 
personnel and the vehicles themselves. Opinion has so hardened as 
to the reasonableness of claims respecting the subjects of the 
prospective treaties that in their absence it appears reasonably clear 
that states will conform to the rights and duties set forth in the 
common provisions of the various draft proposals. 359 

While the legal subcommittee of the Committee on Peaceful Uses 
of Outer Space must be credited with contributing to the promul- 
gation of customary rules of international law, as in Resolutions 
1721 (XVI) 1802 (XVII), 1962 and 1963 (XVIII), and also with 
assisting in the unfolding of additional principles and new rules — 
through whatever form — it has fallen to the scientific and tech- 
nological subcommittee to provide the rudimentary conventional 
international law for outer space. The two resource states, mindful 
of the terms of the Kennedy-Khrushchev letters of March 1962, 
have entered into technical agreements to exploit three particular 
phases of outer space activity. During the 1962 Geneva meeting 

358 Yearbook of the United Nations, 1947-48 93 (1949). Compare, Whitton, 
"Propaganda and International Law," 72 Recueil des Cours 596 (1948) ; Wright, 
"The Crime of War-Mongering," 42 A.J.I.L. 128 (1948) ; Preuss, "Interna- 
tional Responsibility for Hostile Propaganda against Foreign States," 28 
A.J.I.L. (1934) ; Van Dyke, "The Responsibility of States for International 
Propaganda," 34 A.J.I.L. 58 (1940) ; Whitton, "Radio Propaganda— A Modest 
Proposal," 52 A.J.I.L. 739 (1958). 

359 See pp. 458-460, 464-468, 480-482 infra for United States and Soviet pro- 
posals. 



230 

of the technical subcommittee of the Committee on the Peaceful 
Uses of Outer Space, Dr. Hugh Dryden, representing the United 
States, and Academician A. A. Blagonravov, representing the Soviet 
Union, discussed in detail the possibilities of cooperation in meteor- 
ology, a world magnetic survey, and satellite telecommunications. 
On June 8, they issued a joint communique in which it was an- 
nounced that recommendations on these points had been forwarded 
to their governments. 360 The bilateral agreement, consisting of a 
summary of understandings, was transmitted to the United Nations 
on December 5, 1962, in a letter signed jointly by the respective 
permanent representatives of the United States and the Soviet Un- 
ion. The letter stated that the documents related "to an agreement 
reached on cooperation in the peaceful uses of outer space * * *" 361 
This bilateral agreement, although not the first entered into between 
the United States and another state, was the first significant space 
agreement between the resource nations. 

The agreement was to be implemented by scientists of the two 
states and provided for meteorological contributions by the United 
States and the Soviet Union, within their capabilities, toward the 
creation of a global weather satellite system for the benefit of all 
nations. Both states agreed to cooperate through the use of their 
own satellites in the preparation of a map of the earth's magnetic 
field. Finally, they agreed to cooperate in using Echo A-12, a 
NASA satellite, for a passive communications experiment. 362 These 
various activities are to be extended over a period of years, with 
close coordination with the World Meteorological Organization, 
International Telecommunications Union, COSPAR, and other inter- 
national, as well as national, bodies. Many commentators have called 
attention to the comparative ease with which this agreement was 
achieved in comparison with the difficulties engendered in the 
political-legal forum. 363 

3. Role of Other International Organizations 

Outer space has also attracted the attention of the United Nations' 
Economic and Social Council as a result of its responsibility in the 
fields of science and technology. Paragraphs C and D of Gen- 
eral Assembly Resolution 1721 (XVI), Parts III and IV of 

3 60 jj.N. Doc. A/AC.105/5, Annex III 1. 

361 U.N. Doc. A/C.l/880 ; NASA News Release No. €2-257, Dec. 5, 1962 ; 
Annex 22, infra, pp. 482-488. 

SG2 Ibid., 3-6. 

363 This fact has also been remarked on frequently in the Committee on the 
Peaceful Uses of Outer Space. 



231 

Kesolution 1802 (XVII), and Parts III and IV of Resolution 1963 
(XVIII) impress responsibilities on the World Meteorological Or- 
ganization (WMO) and the International Telecommunication Union 
(ITU), which have important interests in the peaceful uses of outer 
space. Both organizations have made substantial inquiries into 
space problems, have regulatory activities which are intended to 
maximize the use of space capabilities, and have cooperated with the 
UN through the submission of reports to the General Assembly. 
Representatives of WMO, ITU, and UNESCO have appeared before 
UN committees and have reported both orally and in writing on 
their activities in their areas of special interest. The International 
Atomic Energy Agency (IAEA) and the World Health Organiza- 
tion (WHO) have also cooperated with the UN committees dealing 
with outer space. 

Upon the invitation of the UN, the private International Council 
of Scientific Unions, through its Committee on Space Research 
(COSPAR), has participated in the work of the Committee on the 
Peaceful Uses of Outer Space as an observer. All such agencies, 
public and private, have engaged in developing and planning edu- 
cational and training programs on meteorological and telecommuni- 
cations techniques and have also advised various UN bodies of their 
findings and have made appropriate recommendations. 

4. Bilateral Treaties and Other Agreements Dealing With the 
Use and Exploration of Outer Space 

The United States, in order to implement its space programs and 
policies, has entered into a host of international agreements with 
many states. The agreements have been mainly on a bilateral basis, 
dealing generally with technical as opposed to political subjects. 
Although the agreements have not explicitly acknowledged such 
fundamental principles as those providing that outer space may be 
used only for peaceful purposes, or that it may be used and explored 
by all states without right of appropriation, or that it is governed 
by international law and the terms of the UN Charter, these agree- 
ments do, nonetheless, constitute support of these principles by clear 
implication. 

The extent to which the United States is engaged with other 
states in the many fields of space research and scientific develop- 
ment is vast. Much of this international cooperation is the product 
of explicit international consent, which is marked by varying degrees 
of formality. The extent of such cooperative effort was described by 

791-405—66 16 



232 

Senator Gore to the United Nations on December 3, 1962, when he 
described the range of such activities as follows: 

Today, happily, more than fifty nations are associated with 
the United States on one or another aspect of this important 
work. There are over two dozen space tracking and data acqui- 
sition stations in nineteen separate political areas in support of 
United States scientific programmes, the majority operated 
wholly or in part by technicians of the host countries. Scien- 
tists of forty-four nations are working with our space agency 
NASA in ground-based research projects in meteorology, com- 
munications, and other space sciences, directly utilizing United 
States satellites. Thirteen nations are engaged with us in actual 
flight projects in which experiments, jointly determined by the 
scientists of both countries, are sent into space either on vertical 
sounding rockets, or in earth satellites. * * * These have all been 
truly cooperative experiments, the results of which are open to 
all, to every nation, to every citizen of the world. 364 
The first United States bilateral agreement dealing with space- 
age problems was with the United Kingdom. On July 21, 1950, the 
two states entered into "The Bahamas Long Range Proving 
Ground" agreement providing for a flight testing area for vehicles 
launched from Cape Canaveral to a point north of the Caicos 
Islands. 365 With the advent of the International Geophysical Year 
(IGY), numerous agreements were entered into dealing with tech- 
nical cooperation, including the installation of tracking and telem- 
etering facilities in a substantial number of countries. These were 
formal agreements between states and were in addition to the many 
informal arrangements between scientists and technologists of dif- 
ferent countries. 

The formal agreements, at first negotiated by personnel of the 
Department of State, seldom achieved formal treaty status. It was 
more common to effect exchanges of notes, memoranda, and letters 
between representatives of United States diplomatic missions and 
foreign offices. However, with the establishment of the National 
Aeronautics and Space Administration in the United States on July 
29, 1958, NASA has become the agency through which technical 
space agreements with foreign states have been processed. Illustra- 
tive of NASA negotiated agreements, often described as a "Memo- 

364 U.N. Doc. A/C.1/PV.1289, 21. 

365 MacChesney, U.S. Naval War College International Law Situation and 
Documents, 1956, 611 (1957). TIAS 2099; 1 UST 545; 97 UNTS 261; Cmd. 
8109. 



233 

randum of Understanding," and not referred to the United States 
Senate, as would be the case of a formal treaty, have been those 
with the British Post Office, the Brazilian Post Office, the Brazilian 
National Committee for Space Activities, the Italian Space Com- 
mission (in this instance the memorandum was made public through 
the exchange of notes signed by the Vice-President of the United 
States and the Italian Foreign Minister), the French National Cen- 
ter for Space Studies, the Indian Department of Atomic Energy, 
and the Japanese Ministry of Posts and Telecommunications. 366 

The most common subject of these agreements relates to the 
tracking of space vehicles and orbiting earth satellites. At the time 
of this writing such agreements had been entered into with the 
following sixteen states : Argentina, Australia, Brazil, Canada, Chile, 
Ecuador, United Kingdom, India, Iran, Japan, Mexico, Netherlands, 
Nigeria, Peru, South Africa, and Spain. 367 The agreements at first 
dealt with rocket probes. Later, as the art increased, provisions were 
made for missiles and orbiting space vehicles. The number of such 
agreements with a given state varies considerably: from one with 
Mexico to more than fifteen with the United Kingdom. 

Some of the agreements deal only with the right to establish and 
use tracking stations in other countries, while others make detailed 
provision for a substantial number of rights. In the latter category, 
for example, the agreement of February 10, 1961, between the United 
States and the Federation of the West Indies (titled "United States 
Defense Areas in the Federation of the West Indies") provided for 
the "right to maintain and operate within the defense areas an 
electronics research and test station, including its associated instru- 
mentation, detection and communications systems. The United States 
government shall also have the right to launch, fly and land test 
vehicles." 368 The agreement, with respect to these rights, also pro- 
vided that "it is understood that the electronics test and research 
station which the United States Government will operate pursuant 
to this provision will be used in connection with United States test 
and research programmes in the fields of electronic surveillance and 
communications. Research and test operations at the station will 
include detection, tracking, telemetry, data read-out, reception, trans- 
mission and communications related to both missile and space pro- 
grammes." 369 



366 All such agreements have been published either in TIAS beginning with 
2099 of July 21, 1950, or in NASA News Releases. 

367 NASA Press Release No. 63-10, January 27, 1963, p. 5. 

368 TIAS 4734. 

369 Ibid. 



234 

In addition to the sixteen states with which the United States 
has entered into tracking agreements, space agreements have also 
been reached with eight others : Paraguay, Chile, Federation of the 
West Indies, France, Federal Republic of Germany, Italy, Sweden, 
and the Soviet Union. These agreements have been bilateral in form 
except for the NASA agreement relating to the launching of the 
relay experimental communications satellite between the United 
States and six other states, namely, the United Kingdom, France, 
Italy, Federal Republic of Germany, Brazil, and Japan. 370 

Illustrative of the wide-ranging developments in the area of space 
science and technology have been international agreements on many 
subjects, which — so far as the United States has been concerned — 
have developed in the following chronological sequence: proving 
ground for guided missiles, tracking of guided missiles, meteorologi- 
cal test systems, tracking stations for space vehicles, damages to 
fisheries in missile test programs, radio communications, experi- 
mental communications satellites, sampling radioactivity, coopera- 
tion in space research, special agreements for Midas, Relay, and 
Rebound, radio regulations, joint equatorial launch, equatorial 
sounding rocket facility, and the United States-Soviet agreement 
dealing with a world geomagnetic survey as well as with meteorology 
and passive communications. These developments cover the period 
from 1950 through 1963. 

Many other states have entered into international agreements 
dealing with the peaceful use and exploration of outer space. Per- 
haps the most notable has been the multilateral agreement between 
Australia, Belgium, France, the Federal Republic of Germany, Italy, 
Holland, and the United Kingdom encompassing a European Orga- 
nization for the Development and Construction of Space Vehicle 
Launchers. 371 Another example has been the agreement establishing 
the European Space Research Organization consisting of Belgium, 
France, the Federal Republic of Germany, Italy, Holland, the United 
Kingdom, Spain, Sweden, and Switzerland. 372 

All of the explicit space agreements have been based on the funda- 
mental assumption that launches from the surface of the earth, 
transit through airspace, transit through outer space, and return 
to earth — when such launches have been for peaceful, i.e., non- 
aggressive and beneficial, purposes — have been and are legally per- 
missible. None of these agreements specifically refer either to the 



370 NASA News Release No. 62-258, December 11, 1962, p. 15. 

371 Cmnd. 1731, Misc. No. 17 (1962) : Cmnd. 1895, Treaty Series No. 68 
(1962) . For discussion, see pp. 81-84 supra. 

372 Cmnd. 1840, Misc. No. 30 (1962) . For discussion see pp. 82-84 supra. 



235 

missible. None of these agreements specifically refer either to the 
creation of a new, or the promulgation of a pre-existing, rule or 
principle of law. In the context of the practices and usages current 
at the time these explicit agreements were executed, including the 
development of a customary international law of outer space during 
and after the IGY, it is clear that states have asserted the legal 
right to engage in the peaceful use and exploration of outer space. 
In doing so, states have supported their conduct on the legal basis 
that the forms of conduct actually engaged in were legally permis- 
sible in view of the fact that there were no valid legal inhibitions 
then existing which could rightfully — and thereby legally — have 
denied to them the right to engage in such conduct. In short, in 
the absence of effective principles and rules prohibiting the use and 
exploration of outer space for peaceful purposes, the type of launches 
actually engaged in — being peaceful in their nature — were at the 
time of these express agreements considered to be lawful. The sub- 
sequent space practices, the continued force of these agreements, and 
the consensus arrived at in the United Nations continue to support 
the view that outer space may be used solely or exclusively for peace- 
ful, i.e., nonaggressive and beneficial, purposes. 

This conclusion may also be supported by general principles of 
law and by reference to suitable legal analogies. The impact of 
general legal principles upon the development of a law of outer 
space will be discussed in the following section. 

5. General Principles of Law 

With the promulgation by the United Nations of basic principles 
of law regulating activities in outer space, it has become one of the 
functions of general principles of law to provide support for such 
space law principles. General principles must also assist in the 
extension and implementation of those principles upon which gen- 
eral agreement has already been reached. Among the general prin- 
ciples of law which can assist in the development of an adequate 
legal structure for space activities are estoppel, respect for acquired 
rights, good faith and nonabuse of rights, and the general principles 
of equity. 

a. Estoppel 
The principle of estoppel, widely accepted in the jurisprudence 
of municipal law, has received much attention in international law 
in recent years. This principle, by its inherent merit and by general 
acceptance, has become a general principle of international law 
recognized by civilized nations. 373 It depends upon the acceptance 

373 MacGibbon, "Estoppel in International Law," 7 InVl & Comp. L.Q. 468 
(1958). 



236 

of good faith as a guide to interpersonal and international relations, 
and depends upon the concept of consistency as contributing to 
stability and predictability in international conduct. 

Several forms of estoppel have been identified. It may be estab- 
lished through formal and explicit written processes, such as treaties, 
exchanges of notes, resolutions, declarations, or any other written 
agreement. 374 The force of the principle has been noted on several 
occasions where the international agreement has taken explicit form, 
and the World Court has emphasized the validity of the doctrine. 375 

Estoppel is also the product of usage or conduct, and, as such, has 
close affinity with the doctrines involved in the development of 
customary international law. Estoppel in this context is related to 
the need for consistency and inhibits states from changing courses 
or patterns of conduct whenever by so doing there would be unrea- 
sonable harm or detriment to other states which had so arranged 
their conduct as to benefit from practices supported by implicit 
behavior. The principle of estoppel is broad enough to require 
states to assert affirmatively their rights and freedom of action. 37 * 
A state may not only be estopped by its affirmative conduct, but 
may also be estopped by reason of its failure to act after having 
been put on due notice of the development of a pattern of conduct. 

For the principle of estoppel to be operative at least three essential 
conditions must exist. First, the meaning of a state's conduct — 
either in the form of a writing or practice — must be clear and 
unambiguous. Second, if the conduct is in express form, it must 
be voluntary, unconditional, and authorized. And third, there must 
be good faith reliance to the benefit or detriment of the various 
participants. 377 

The principle of estoppel supports the legal right and duty rela- 
tionship that states enjoy in regard to the use and exploration of 
outer space for peaceful purposes. The total past conduct of states 
has been that of the peaceful uses of space. This, in turn, has pro- 
vided them with the right to rely upon such total conduct to the 



374 Bovvett, "Estoppel Before International Tribunals and its Relation to 
Acquiescence," 33 Brit. Yb. Int'l L. 180 (1957). 

375 Eastern Greenland Case, P.C.I.J. Reports, Series A/B, No. 53, 71-73 
(1933) ; Jurisdiction of the European Commission of the Danube Case, P.C.I.J. 
Reports, Series B, No. 14. 23 (1927) ; Diversion of the Water from the Meuse 
Case, P.C.I.J. Reports, Series A/B, No. 70. 25 (1937). 

376 MacGibbon, op. cit., 480. 

377 Bowett, op. cit., 180-188. Interpretation of Peace Treaties Case, I.C.J. Re- 
ports 190 (1950) ; Serbian Loans Case, P.C.I.J. Reports, Series A, Nos. 20/21, 
39 (1929). Lauterpacht, The Development of International Law by the Inter- 
national Court 204 (1958). 



237 

end that they may lawfully rely on the use of space for nonaggres- 
sive and beneficial purposes. By their past conduct, states have 
become estopped to deny to each other the right to engage in peaceful 
uses. Further, since there has developed a legal consensus that outer 
space must be used solely or exclusively for peaceful purposes, and 
conduct has followed this pattern, it may be urged that states have 
estopped themselves from using space for nonpeaceful purposes. 
Under such circumstances, states would be estopped from claiming 
legal support for the use of outer space for nonpeaceful purposes. 
It is thus submitted that the broad claim, now alive in the interna- 
tional forum, that outer space be used only for given purposes and 
upon certain conditions, has been buttressed by the principle of 
estoppel. 

b. Res feet for Acquired Rights 

The general principle that law will respect acquired rights is 
based on the same considerations which underlie the doctrine of 
estoppel, namely, that rights acquired over a suitable period of time 
must be respected since this conduces to an orderly community. 
It enhances peaceful change, provides for conditions of mutuality 
in which the concept of good faith can be maximized, and acknowl- 
edges the expediency of conforming to ongoing expectations. On 
the basis of this principle, states are permitted to make plans for 
future activities in space with some assurance that they will be able 
to implement them. 

This principle works in two ways respecting space activities. 
First, it bolsters the principle that outer space may be used for 
peaceful, i.e., nonaggressive and beneficial, activities. This neces- 
sarily takes into account the launching, orbiting, and return to earth 
of space vehicles. Secondly, insofar as the principle has been estab- 
lished that neither space nor celestial bodies may be made the sub- 
ject of appropriation or sovereign control, the principle serves as a 
limitation upon the acquisition of such interests. As in the case 
of estoppel, so also as concerns the doctrine of respect for acquired 
rights, judicial opinions uphold such principles. 378 

c. Good Faith and Nondbuse of Rights 

The commonality of the concept of good faith in man's relation- 
ships extends throughout his total experience. It is more than a 



378 Certain German Interests in Polish Upper Silesia Case, P.C.I.J. Reports, 
Series A, No. 7, 28 (1926) ; McNair, "The General Principles of Law Recognized 
by Civilized Nations," 33 Brit. Yb. Int'l L. 1-19 (1958) ; Stuyt, The General 
Principles of Law as Applied by International Tribunals to Disputes on At- 
tribution and Exercise of State Jurisdiction 20 (1946). 



238 

general principle of international law, and in the view of many is 
regarded as a foundation of all law as well as the ultimate guide to 
all social relationships. Innumerable court decisions attest to the 
view that the principle of good faith is the standard underlying all 
international law. 379 As such, it requires states to conform with 
reasonable expectations induced either through general customary 
international law or through express international agreements. 

The right and duty relationship is central to the concept of good 
faith, for without the existence of such a relationship, the principle 
of good faith would be lacking in an environment in which it could 
serve the interests of order and stability, as well as other significant 
human values. The relationship between good faith and legal rights 
has been noted by the World Court, which has stated that "it is 
possible to see an indirect approach to the principle prohibiting 
abuse of rights in the frequent affirmation of the duty of States to 
act in good faith in the exercise of their rights." 380 Eights, once 
established, are suited to judicial proof, as are abuses of rights. The 
World Court has ruled that the party asserting that an existing 
right has been abused has the duty of proving it and that the 
existence of an abuse "cannot be presumed by the Court." 381 
d. Equitable Principles 

Discussions in the United Nations have made it clear that outer 
space must be used for the benefit of all mankind, and that such 
benefits must be made available to resource and nonresource nations 
alike. There is also general consensus that space benefits must be as 
broadly and equitably distributed as is possible. The principles of 
equity may be called upon to support the claims of many nations 
that activities in space be as extensive and as permissive as possible 
and that exclusive uses be held to a fundamental minimum. These 
foregoing general principles — and others might be mentioned, such 
as Pacta Sunt Servanda, the right to international peace and secu- 
rity, the right of self-preservation, and sovereignty under the law — 
are all related to each other. Their importance lies in the fact that 
they have, in the past, contributed to the necessary ordering of inter- 
national relations. They have served as guides to states in making 
and compromising claims in the international forum. Additionally, 
they have been recognized and used by international tribunals. 

379 Norwegian Loans Case, I.C.J. Reports 53 (1957). Compare Cheng, The 
General Principles of Law as Applied by International Courts and Tribunals 
iii (1953). 

380 Conditions of Admission of a State to Membership in the United Nations, 
I.C.J. Reports 79-80 (1948). 

™*The Free Zones Case, P.C.I. J. Reports, Series A, No. 24, 12 (1930). 



239 

The application of these principles to the emerging law of outer 
space may be considered a foregone conclusion. Through their force 
they will strengthen the more fundamental principles applicable to 
the use and exploration of outer space. Through their presence 
and influence, existing and future space law principles — as well as 
more detailed rules — will take on greater specificity and meaning. 
Through their persuasive influence they will have a major role in 
bringing the new space principles and rules into the seamless web 
of all the law. 382 

e. Private Efforts to Supply Space Law Principles 
Individual lawyers and associations of lawyers, throughout the 
world, have made many important contributions to the development 
of principles applicable to outer space. The impact of their views 
upon the emerging law of outer space has been so important, and 
will continue to be so impressive, that reference must be made to 
their suggestions and recommendations. Their various drafts often 
rather closely approximate the views expressed in the United Na- 
tions, and in some instances are intentionally quite tentative. 

In 1960 the Committee on Aeronautics of the Association of the 
Bar of the City of New York promulgated "Some Tentative Pro- 
visions for International Agreements on Space Activities." 383 
Taking the form of a suggested space law agreement, the proponents 
set forth a very broad program for the establishment of a legal 
regime for outer space. The draft emphasized the legal right to the 
free use of space. It further provided that space activities, as 
defined, might be carried on in airspace, without regard to national 
sovereignty in the airspace, but that such space activities could not 
"unduly interfere with national uses of air space for security and 
navigation." 384 Although the proponents of the agreement reached 
no decision as to the most acceptable line dividing airspace from 
space, they did acknowledge the need for reaching such a decision. 
There was agreement that states would not be able to exercise national 
jurisdiction above a certain point, measurable in miles. Further, for 
those who favored the establishment of an appropriate boundary 
in the near future, there was a good consensus that the boundary 



382 It is implicit that reference to general legal principles in the space age 
will contribute to a better community of nations and men. Compare, Schle- 
singer, "Research on the General Principles of Law Recognized by Civilized 
Nations," 51 A.J.I.L. 753 (1957) ; compare, Friedmann, "The Uses of 'General 
Principles' in the Development of International Law," 57 A.J.I.L. 279 (1963). 

sea Forum on Space Law, (mimeo.), (March 24, 1960). 

s**Ibid., p. 3, (Article B). 



240 

should be at a fairly low altitude, in the range of from 25 to 50 
miles. 

The Committee's provisions, as with other private proposals, 
advanced claims for national rights, while taking into account 
limitations upon such rights because of broad community interests. 
This was reflected in the Committee's suggestions regarding the 
central problem of the peaceful use of outer space. Their draft 
provided, under the heading Peaceful Uses of Space : 

The High Contracting Parties declare their adherence to the 
principle that the conduct of space activities should be open 
and orderly. They denounce the use of space for purposes of 
aggression. They reserve all rights of security and self-defense 
conferred by or recognized under the Charter of the United 
Nations or otherwise under international law. 385 
The draft then made provision for the prohibition of the use of 
space for mass weapons, including an inhibition against the placing 
into orbit or the stationing in space of such weapons. 

Many references were made concerning the need for cooperative 
activity by nations in outer space within the draft. Among the 
subjects treated under this heading were dissemination of space data, 
notice of launchings, orbital or flight tracks, reentry, distribution 
of information on identification and registration, cooperation in the 
repossession of spacecraft and the repatriation of personnel, notice 
as to location of launching sites with a description of those used 
as orbital sites and those used for ballistic launches. In this last 
subject area, a provision for the inspection of orbital sites and for 
the detection at or near ballistic sites of activities other than "space 
activities" was also made. In order to provide for the management 
of such inspections, and for other activities, the draft provided for 
an International Space Agency, whose duty included cooperation 
with existing international organizations having to do with space 
activities. The Agency was accorded operational functions, includ- 
ing the establishment of world data centers, the management of 
satellite tracking stations, and the organization and direction of joint 
space programs undertaken by two or more of the signatories. Pur- 
suant to the draft all participating nations would undertake rights 
and duties concerning radio spectrum management (within the 
larger reference of the International Telecommunications Union), 
concerning disposal of spent spacecraft, respecting liability for 
damages, and the minimization of adverse effects of space contamina- 
tion. 



385 Ibid., p. 4, (Article C). 



241 

Under the heading "Territorial Claims to Celestial Bodies," the 
group proposed that celestial bodies should not be subject to "ex- 
clusive appropriation by any person, organization, or State on earth," 
but that objects launched from earth should remain the property 
of the launcher. 386 The proposal also stated "Any exploration, occu- 
pation, development, use, and exploitation of the resources of such 
celestial bodies shall be conducted so as not to endanger such activi- 
ties conducted by others." 387 The draft also provided for a modifica- 
tion of or extension of this principle by a vote of two-thirds of the 
members of the General Assembly of the United Nations. Addi- 
tionally, it made provision for the submission of disputes, not 
resolved by other means, relating to the interpretation or applica- 
tion of the proposed convention, to the International Court of 
Justice. Finally, the draft imposed upon the proposed agency the 
duty of reviewing continuously the terms of the agreement with 
the view to making recommendations for changes to the signatories. 

This proposal, while in agreement with the basic principles set 
forth in UN Kesolution 1721 (XVI) of December 20, 1961, went 
considerably further. Like other nonpublic proposals, this one 
emphasized the urgent need for the development of a structured 
and precise law for outer space. Additionally, private proposals 
have stressed the need for the management of space problems 
through either existing or new agencies. This particular proposal 
called for the construction of a new agency, while others have urged 
that such functions be performed within the existing framework 
of the United Nations. 

The International Law Association at its 49th Conference, August 
1960, adopted a resolution which had been proposed by its subcom- 
mittee on air sovereignty and the legal status of outer space. This 
proposal, like the one previously described, antedated Resolution 
1721 (XVI), but did take into account the decisions previously 
reached at the United Nations. The Association sought to provide 
principles of law which would serve as the basis for an express 
international agreement, and it should be noted that the Association's 
resolution was adopted before it became generally recognized that 
its principles were, even at that time, being formulated through the 
processes of general customary international law. The Association 
assigned priority to the formulation of the following principles: 
(a) Outer space and celestial bodies should be utilized only 

for peaceful purposes to the greatest common profit of all 

386 Ibid., p. 13, (Article U). 

387 Ibid. 



242 

mankind in accordance with the principles of the United Na- 
tions Charter; 

(b) Outer space may not be subject to the sovereignty or 
other exclusive rights of any State. 388 
The Association recommended that states should enter into explicit 
agreements affirming the above principles. In its view, such agree- 
ments should include provisions whereby states would not make 
claims of sovereignty or other exclusive rights over celestial bodies. 
Finally, the Association expressed an interest in securing a definition 
of the lower limits of outer space and in obtaining an international 
mechanism for ensuring observance of the foregoing principles. 

The Inter- American Bar Association has also adopted a resolution, 
titled in part "Magna Carta of Space," which has had an influence 
on the development of space law principles. Meeting early in 1961, 
the Association agreed on a resolution which called for an express 
international agreement along the lines proposed very widely then 
and now. The resolution pointed to the urgency of creating "an 
international code of law for the benefit of the nations of the world 
with the avowed purpose of avoiding war and preserving peace." 389 
The detailed contents of the space Magna Carta were based upon 
the view that all states, pursuant to Article 2 (1) of the UN Charter, 
were equally sovereign and had an equal interest that "Outer Space 
be used for peaceful purposes only." 390 Thus, part (f ) of this reso- 
lution stated that "Outer Space shall be used solely for peaceful 
purposes with freedom of exploration and exploitation thereof given 
to all peoples for the benefit of mankind." 391 The final paragraph, 
(r), resolved that "War, in, by, through space is hereby barred 
forever." 392 

The resolution called for space to be free for peaceful uses, and 
employed the distinction frequently used by writers on the subject 
relating to res nullius and res communis. Free or res communis 
space would deny rights of appropriation and exclusive control by 
one nation, whereas, according to the resolution, the res nullius prin- 
ciple would authorize rights of appropriation through the establish- 
ment of principles of discovery, habitation and settlement. It there- 

388 Legal Problems of Space Exploration, a Symposium, supra, note 10, Chapter 
I, at 679. 

389 Resolutions, Recommendations, and Declarations Adopted by The Twelfth 
Conference of the Inter- American Bar Association 3 (1961) ; Congressional 
Record, May 11, 1961. 

*™Ibid., 2. 
391 Ibid . 
*» 2 Ibid., 3. 



243 

fore suggested a zonal approach to outer space with the view that 
airspace would be subject to sovereign control, that outer space 
would be a res communis, and that between the two there would 
be a zone called "Neutralia." In the latter area the right of innocent 
passage was to be recognized without offense to sovereignty. No 
specific reference was made, however, to the probable need for pas- 
sage by spacecraft through the airspace of another state. 

Eeference was made to such typical subjects as the need to identify, 
register, and establish the intent of space launches, reentry and land- 
ing rights, allocation and control of radio frequencies 3 routings to 
avoid hazards between spacecraft and aircraft and between different 
spacecraft, and liability for damages. Unique provisions related to 
the establishment of an international insurance fund under the con- 
trol of an international organization for the payment of damages to 
those harmed by the operation of space vehicles, for the policing of 
outer space in order to prevent violations of individual and national 
rights, for the settlement of disputes through an arbitral procedure 
designated by the UN, and, finally, it was resolved that "The people 
of the earth do hereby declare that they recognize the rights of sov- 
ereignty, ownership and control of any other planet by the inhabi- 
tants thereof." 393 

The American Bar Association, at the instance of its Section of 
International and Comparative Law, adopted a resolution in August 
1962, relating to international space law principles. The House of 
Delegates acknowledged and approved the adoption of the prin- 
ciples contained in Resolution 1721 A (XVI) of the UN General 
Assembly. It also urged as United States policy that through the 
United Nations there be : 

(1) the continued clarification by the United Nations of 
appropriate legal principles with respect to the uses of outer 
space; and 

(2) the drafting of international agreements covering specific 
problems relative to space activities, commencing with subjects 
of immediate practical importance for which agreed solutions 
are most probable ; 

(3) the developing of cooperative programs among the nations 
of the world in their mutual interest in such fields as weather 
forecasting and communications. 394 



393 lUd. 

394 "Proceedings of the House of Delegates ; San Francisco, California, August 
6-10, 1962," 48 American Bar Association Journal 990 (1962) . 



244 

One of the most comprehensive private efforts to formulate a basic 
understanding of space law problems has been the work of a British 
Study Group on the Law of Outer Space. Their results, entitled 
"Draft Code of Rules on the Exploration and Uses of Outer Space," 
was published in 1962 by the David Davies Memorial Institute of 
International Studies. 395 The effort is worthy of notice because it 
assumes that an international code is timely, and because, like the 
present study, undertakes to relate the physical capabilities of space- 
craft to the principles put forward. The first principle of the group 
takes into account the need to effect a practical division between 
outer space and airspace. It is their conclusion that the relatively 
low altitude of 50 miles might serve as "the limit of sovereignty and 
the beginning of outer space." 396 This recent interest in a relatively 
low boundary between the area of res communis omnium, defined as 
outer space and the celestial bodies therein when free for explora- 
tion and use by all, and the even lower res nullius area is itself 
noteworthy. As the practical capabilities of launched spacecraft and 
the X-15 and comparable hybrid type craft become more fully under- 
stood — with their capacity to orbit at least once at close proximity 
to the earth — earlier proposals sponsoring relatively high boundaries 
are being abandoned. Concurrently with this development is an 
increasing demand for national control over areas immediately 
superjacent to areas where conventional aircraft regularly operate. 
This demand has also been accompanied by demands that launched 
and hybrid craft be given the right of innocent passage while en- 
gaged in landing procedures, or that it be treated as aircraft in all 
respects. 

The proposed code by the British Study Group has adopted the 
two principles contained in the General Assembly Resolution 1721 
A (XVI). Further, it has assumed that in the course of interna- 
tional cooperation on space activities, numerous international agree- 
ments will become binding. The draft code has also proposed that 
states and their nationals will have equal rights in the exploration 
and use of outer space, that states and international bodies are not 
"precluded from employing military personnel or equipment for 
scientific and peaceful purposes," 397 and that no "state or interna- 
tional body shall put the airspace, outer space or the celestial bodies, 
to uses which cause, or are likely to cause, modifications of the envi- 
ronment of mankind unless the prior agreement of the appropriate 

395 "Draft Code of Rules on the Exploration and Uses of Outer Space," The- 
David Davies Memorial Institute of International Studies 1-17 (1962). 
396 /&itf., 7. 
397 Ibid., 9. 



245 

international body has been obtained that such modifications are 
acceptable." 398 

Many of the proposed principles are directly related to a broad 
concern respecting the presence of weapons in space. Thus, the draft 
provides that "No spacecraft carrying any type of warhead or other- 
wise designed as a weapon for use against targets on the earth or in 
the airspace, shall be placed in orbit around the earth, or celestial 
body, or be carried in or launched from any space station or celestial 
body." 3 " Presumably omission of outer space targets was inten- 
tional, and this is curious in view of the proposal that "The establish- 
ment of military stations upon any celestial body and the use of 
such stations or of a celestial body for the purposes of war is 
prohibited." 400 and that "The testing of any nuclear device or the 
disposal of radioactive waste upon any celestial body is prohib- 
ited." 401 The draft also prohibits contamination of both the earth 
and celestial bodies, requires control of radio transmissions, permits 
the establishment of celestial stations to facilitate exploration and 
use, calls for the placing of such stations under the supervision of 
the United Nations subject to the right of the establishing state to 
exercise jurisdiction over its personnel in the station, and authorizes 
an international body to establish such a station and, by international 
agreement, to exercise jurisdiction over its personnel in the station. 

The inhibition against the launch or orbiting of weapons for use 
against targets on the earth or in airspace covered conventional as 
well as nuclear, chemical, or bacteriological devices. However, in 
view of the general acceptance of the principle that outer space must 
be used for peaceful, i.e., nonaggressive or beneficial, purposes, the 
draft does not disapprove of the right of a state to employ surveil- 
lance or reconnaissance satellites, which, as the draft acknowledges 
"may primarily serve military purposes, yet have the advantage 
that they contribute to an 'open world' and so increase rather than 
diminish security." 402 

The draft code takes into account, in a very practical sense, the 
fact that space vehicles in returning to earth may occupy flat tra- 
jectories, closely proximate to the surface, for extended areas. This 
means that such craft may transit through areas commonly occupied 
by hybrid craft as well as conventional aircraft, thus posing the 
problem of the height of the sovereignty and control of the sub- 



398 IMd., 


11. 


3 99 Ibid., 


12. 


400 IMd. 




401 IMd. 




402 IMd. 





246 

jacent state. It also raises questions of traffic control for descending 
spacecraft. The British proposal sought to apply existing air law 
rules to the landing procedures of spacecraft, and urged that 
JSTo spacecraft launched from the territory of any State may 
at any stage of its flight enter the airspace of another State 
without the consent of that State: provided that 

a. such consent shall not be withheld if prior notice has been 
given to that State of the intended flight, and it has been shown 
to its satisfaction that the flight is solely for scientific and peace- 
ful purposes and shall be so controlled as to obviate danger to 
aircraft ; 

b. any craft capable of operating both as a spacecraft and as 
an aircraft shall for the purposes of its use of the airspace be 
deemed to be an aircraft ; 

c. a manned spacecraft may enter the airspace without prior 
consent for the purpose of making an emergency landing, but 
shall be subject to the provisions of Section b. 403 

The proposal then suggests that it would be appropriate for any 
state to divert or destroy any spacecraft which might enter its air- 
space without having previously received permission to do so. It fur- 
ther suggests the possibility of liability or damages as the result of 
unlawful diversion or destruction. Provisions for the registration 
of spacecraft by national and international authorities, the assign- 
ment of registration marks, registration as evidence of nationality, 
and registration as proof of ownership are also incorporated. The 
operation of spacecraft by private persons or corporations is ac- 
knowledged and provisions for the licensing of such craft only to 
nationals are made. The purpose of this proposal is to insure a 
continuing state of responsibility for private operators. However, 
other portions of the draft proposal make it clear that the public 
entities, states or international organizations, responsible for the 
launching of spacecraft should be liable for injury, damage, or 
loss caused by the craft or any of its parts. Liability is limited to 
fifty million United States dollars. Finally, this British draft calls 
for the assistance and return of personnel and the spacecraft to the 
launching authority. In the event of dispute, not otherwise resolved, 
the code provides for the jurisdiction of the International Court of 
Justice. 404 

The importance of establishing and recognizing suitable principles 
for an effective law of outer space has been noted by many private 

4™ Ibid., 14. 
4° 4 Ibid., 15-17. 



247 

commentators. Authoritative expressions have been presented in 
many forums, particularly at the meetings of the International 
Astronautical Congresses, the proceedings of which have been pub- 
lished each year since 1959 in the well-known colloquia on the law 
of outer space. 405 Responsible views have also been presented during 
the annual meetings of the American Society of International Law, 
particularly in 1956, 1958, 1961, and 1963. 406 

The views expressed by legal authorities on these occasions have 
reflected the attitudes and policies put forward herein under the 
heading of "General Principles of Law," and the positions taken at 
the United Nations, by the Space Forum of the Association of the 
Bar, by the International Law Association, by the Inter- American 
Bar Association, by the American Bar Association, and by the 
Davies Study Group. The commonality of viewpoint, and the fairly 
general recognition of urgency, suggest that many principles have 
been recognized and clarified. It also suggests that serious efforts 
will continue to be made to refine principles into rules, so that there 
will soon be a rather substantial amount of treaty law providing a 
certain legal structure for many outer space activities. It may be 
hoped, as many have suggested, that progress should go forward 
around such fundamental principles as freedom of use, with result- 
ing diversity of use, peaceful cooperation with the widest possible 
distribution of benefits to all mankind, and, to the extent that dis- 
putes may arise, upon the basis of third party adjudication. Re- 
jection of this last mentioned principle may be said to constitute a 
basic repudiation of law per se. 407 

6. The Problem of Analogies 

In the development of the law of outer space many references 
have been made to the use of analogies. The constantly recurring 
theme of analogy has, in effect, been rivaled only by the variety 
suggested. These have included the high seas, territorial waters, 
contiguous zones, continental shelf, artificial islands, airspace, land, 
the Antarctica, and international rivers and river basins. A very 
broad area of man's past experience is suggested by this variety and 
how it has been brought to bear — in large or small amounts, depend- 
ing on the analogy — on man's diverse interests and activities in 
space. However, it must be remembered that the device of analogy 
is but a means of making a comparison, and that, as analogy, it 



405 Proceedings of the respective Colloquia. 

406 Proceedings of the annual meetings. 

407 Crane, "Law and Strategy in Space," 6 Orbis 287 (1962) 

791-405—66 17 



248 

offers no precedent. When analogizing, one must be alert to the fact 
that in the compared situations there may exist major differences as 
well as the possibility of some striking similarities. Appropriate 
emphasis must be placed upon each during the process of applying 
the principles and rules conditioned by historic forces derived from 
one set of situations to this newly exploitable environment. 

a. High Seas, Territorial Waters, Contiguous Zones, Continen- 
tal Shelf, and Artificial Islands 

In order to understand that sea analogies are meaningful for 
outer space, it is well to recall that the law of the sea contains 
principles and rules which have effectively served the interests of 
peoples, states, and the world community, and have offered to nations 
a maximum of security in accord w r ith their need for ongoing self- 
protection. The same principles and rules have provided for a wide 
sharing of a res communis omnium w 7 ith substantial benefits to man- 
kind. 408 When an experience has been so generally beneficial and 
satisfactory, it is but natural to turn to it and endeavor to repeat 
it in another environment. 

With the development of man's space capabilities, first taking the 
form of rockets and ballistic missiles, it became obvious that early 
devices possessed enormous military significance. In this context, the 
law of the sea was soon called upon to provide support for the 
broad idea that there should be a national right to protect a state 
against threats to national security from outer space 2 and, in particu- 
lar, that a state's sovereignty should be extended to great distances 
out into space. Thus, the zonal concepts of sea law were adduced in 
support of private views that there should be national sovereignty 
above the earth's surface to distances varying from Haley's aero- 
dynamical boundary 409 — about 52 miles above the surface — to 
Cooper's proposals, often modified, ranging between 52 to 300 to 
600 to an indefinite number of miles, modified by more recent pro- 

408 McDougal and Burke, The Public Order of the Oceans 1-88 (1962); 
Schachter has noted the relevance of the international law of the sea to the 
emerging international law of outer space. Further, "the analogy of the high 
seas can only be useful if full regard is had for the differences in conditions, 
techniques and objectives between maritime and 'spatial' activity. With this 
reservation, analogy (or the extension of traditional concepts) may serve the 
useful function of facilitating the acceptance of legal rules in novel situations." 
Schachter, "A Preview of Space Law Problems," 1958 Neiv York County Law- 
yers Association Bar Bulletin 34 (June 1958) ; Legal Problems of Space Ex- 
ploration, A Symposium. Supra, note 10, Chapter I, at 346. 

409 Haley, "Survey of Legal Opinion on Extraterrestrial Jurisdiction," Third 
Colloquium, Appendix 5, p. 54 ; Legal Problems of Space Exploration, A Sym- 
posium, supra, note 10, Chapter I, at 733. 






249 

posals suggesting only 80 to 100 miles. 410 The literature contains 
many varying distances as related to sovereignty. The early pro- 
posals were based largely on speculation concerning the capabilities 
of space devices ; all being heavily influenced by concerns for national 
security. However, the legal-political process could not, in the early 
stages, receive immediate guidance from science and technology 
relative to ultimate space capabilities, nor as to measurements of 
the presence of precise atmospheric amounts at great distances. 

Thus, for a while, lasting down to about 1960, emphasis turned 
away from the effort to fix precise limits within which airspace type 
sovereignty might be exercised over space devices. During this time 
it was recognized that national protective measures were not re- 
stricted to areas over which sovereignty was exercised, 411 because of 
the realization that so far as space devices were concerned their 
potential danger was not at all related to mere "overness." This 
conclusion was in part based on the fact that where distances are 
great, substantial difficulties exist in the preparation of orbiting 
space devices for potentially aggressive military purposes. Addi- 
tionally, it became apparent that space devices could orbit for ex- 
tended periods with perigees as low as 100 statute miles, and, that 
perigee heights might be further considerably reduced, at least for 
relatively small satellites and for at least a relatively small number 
of orbits. 

These factors have produced several results. For example, they 
have somewhat strengthened the demand for fixing a relatively low 
line to which airspace sovereignty may extend, and thereby an 
equally low line for the legal regime of outer space. Additionally, 
they have supported the wisdom of the broadest of the sea law 



410 Cooper's views may be consulted in "High Altitude Flight and National 
Sovereignty," 4 International Law Quarterly 418 (1951) ; "Legal Problems of 
Upper Space," 1956 Proceedings of the American Society of International Law 
92 (1956) ; The Times (London), September 2, 1957, p. 9; "Missiles and Satel- 
lites: The Law and Our National Policy," 44 American Bar Association Journal 
321 (1958) ; "International Control of Outer Space — Some Preliminary Prob- 
lems," Third Colloquium 22 (1960). The legal adviser to the State Department, 
Loftus Becker, posed the figure of 10,000 miles in 1958, Becker, "Major Aspects 
of the Problem of Outer Space," 380 Department of State Bulletin 966 (1958). 
For views on the law of the air, see Goedhuis, "Questions of Public Interna- 
tional Air Law," 81 Recueil des Cours 205 (1952), and compare Kucherov, 
"Soviet Attitude toward International Law and Outer Space," Soviet Space 
Programs, supra, note 10, Chapter I, at 194-203. 

411 Chief Justice Marshall stated in 1804 that the state's "power to secure 
itself from injury may certainly be exercised beyond the limits of its territory." 
Church v. Huooart, 2 Cranch 187. 



250 

analogies, namely, that there should be sovereign control over the 
airspace similar to the right of a state to exercise sovereign control 
over territorial waters and that just as the high seas are free of 
exclusive sovereign control, so also the area to be known as outer 
space should be free of exclusive sovereign control. The force of this 
analysis led, without dissent, to the adoption of the General Assem- 
bly's Resolution 1721 A l.(b) (XVI), which promulgated the 
previously established customary law that "Outer space and celestial 
bodies are free for exploration and use by all States in conformity 
with international law and are not subject to national appropria- 
tion." 412 Thus, it may be positively stated that outer space and 
celestial bodies, like the high seas, may not be made the subject of 
any state's exclusive sovereignty. This, of course, does not limit the 
right of a state to enjoy international peace and security, nor does 
it inhibit a state's legitimate right of self-defense. Neither does it 
resolve the problem of determining where airspace ends and outer 
space begins, nor establish precise activities in which a state may 
engage while pursuing the peaceful purposes impressed upon it by 
the current law. However, it is absolutely clear that a state, and 
others, may engage in the same kind of peaceful activities in outer 
space as a state, and others, may pursue on the high seas, and for 
the same purposes. Legitimate defensive activities may be carried on 
in both environments, since both are man-oriented and must serve 
his national and community values. 

Resolution 1721 (XVI) made no effort to define the realm of 
outer space and did not carry into this environment the fixed — 
albeit uncertain — zonal concepts of territorial waters and high seas. 
The legal situation was accurately depicted by Ambassador Steven- 
son prior to the adoption of the resolution. He stated in 1961 to the 
First Committee how fortunate it was that "the value of the prin- 
ciples of freedom of space and celestial bodies does not depend on 
the drawing of a boundary line. If I may cite the analogy of the 
high seas, we have been able to confirm the principle of freedom 
of the seas even in the absence of complete agreement as to where 
the seas begin." 413 

The importance of establishing a fixed distance above the sub- 
jacent state as the upward boundary of exclusive power cannot be 
overlooked. This point can best be established by means of express 
agreement in view of the needs of certainty and specificity. It 
springs directly from the vast peace, security, and defensive — as 

412 Annex 2, infra, at pp. 443-446. 

413 U.N. Doc. A/C.1/PV.1210. 



251 

affected by all of the other considerations of the social complex — 
requirements of the present world. In the event that express agree- 
ment cannot be realized, the forces of custom and usage will un- 
doubtedly provide the ultimate bounds of national sovereignty. At 
the present time, however, custom and usage are unable to provide 
suitable guidance for precise limits of such a boundary because of 
the constant change in science and technology. At the time of this 
writing, the typical minimum perigee of manned spacecraft is 100 
miles. The future may well bring a reduction of this altitude, but in 
any event, in the course of a launch and return to earth — particu- 
larly when advanced hybrid craft are employed — it may be antici- 
pated that relatively flat trajectories, at heights of 25 to 60 miles, 
will extend in lateral distance as far as 7,000 to 10,000 miles. 

Under these probable circumstances, the maritime analogy of 
territorial waters for spacecraft when in airspace (within which the 
subjacent state exercises full sovereignty) may be employed. The 
concept of innocent passage through airspace for the forthcoming 
landing of a spacecraft has been frequently suggested. 414 However, 
inasmuch as a state may undertake security measures in areas over 
which it does not exercise sovereignty, formalization and highly spe- 
cific clarification of space activities may be required. Thus, the 
concept of contiguous zones may be developed for areas situated 
above the upward or lateral reach of the exclusive sovereignty of 
the underlying state and the legal rationale underlying air defense 
identification zones would appear applicable to these outer reaching 
areas beyond sovereign control. 415 

It does not appear that a subjacent state will be able to exploit 
outer space in the same manner that a littoral state is able to use 
the resources of the continental shelf. It is, in fact, difficult to 
imagine any exploitative parallel between areas in space and those 
underlying the high seas closely proximate to a surface continental 
land mass. The Truman Proclamation termed such a shelf to be "an 
extension of the land-mass of the coastal nation and thus naturally 
appurtenant to it * * *" 416 Although the United States proclamation 



414 Horsford, "Principles of International Law in Spaceflight," 5 St. Louis 
University Law Journal 73 (1958). Compare articles in the Space Law Col- 
loquia. 

415 MacChesney, U.S. Naval War College International Law Situation and 
Documents, 1956, 579-600 (1957) ; Martial, "State Control of the Air Space 
over the Territorial Sea and the Contiguous Zone," 30 Canadian Bar Review 
245 (March 1952). 

416 United States Continental Shelf Proclamation, 10 Federal Register 12303; 
40 A.J.I.L. Supp 45 (1945). 



252 

made reference to self-protection, it also declared that "The char- 
acter as high seas of the waters above the continental shelf and 
the right to their free and unimpeded navigation are in no way 
thus affected." 417 This has since been recognized in Article 3 of the 
1958 Geneva Convention on the Continental Shelf. 418 Thus, if any 
comparison affecting outer space is to be made, it must be that the 
principles of Resolution 1721 A (XVI), requiring that outer space 
be available for free use and exploration, correspond with the rights 
possessed on the high seas rather than the primary rights of exploita- 
tion of natural resources. Any self -defensive factors implied in the 
continental shelf doctrine are safeguarded, in outer space, via the 
concept of sovereignty in airspace and by the doctrine of reasonable 
self-defense to ensure the basic right of continued national existence. 

Very little attention has been called to the possible analogy be- 
tween an artificial island positioned in the high seas and the perma- 
nent or semipermanent space station established in outer space. 
Texas towers have been placed in high seas areas on the continental 
shelf in order to facilitate the exploitation of natural resources and 
for security purposes. Article 2 of the 1958 Geneva Convention on 
the Continental Shelf specifically takes this into account and author- 
izes their use for exploitative purposes. The essential natural re- 
sources of outer space are observable scientific data. Thus, there 
would appear to be no objection to the establishment of a permanent 
or semipermanent space station for the gathering of scientific data. 
This would fall well within the principle that outer space is to be 
used for peaceful, i.e., nonaggressive and beneficial, purposes. 

Franklin, in discussing the use of the continental shelf for pur- 
poses other than the exploitation of natural resources, has suggested 
that such areas may be justifiably used for reasonable defensive 
purposes. According to him, Article 5 (1) of the Convention sug- 
gests the test of reasonableness for the exercise of inherent defensive 
rights, 119 namely, that such installations "must not result in any 
unjustifiable interference with navigation, fishing, or the conserva- 
tion of the living resources of the sea, nor result in any interference 
with fundamental oceanographic or other scientific research carried 
out with the intention of open publication." 420 There is no doubt 
that whomever installs an artificial island or Texas-type tower on 



*« Ibid. 

418 u.n. Doc. A/CONF.13/L.55. 

419 Franklin, U.S. Naval War College International Law Studies, 1959-1960, 
G6 (1961). 

420 U.N. Doc. A/COXF.13/L.55. 



the high seas retains legal title to it, nor that such an installation 
must not unreasonably interfere with existing sea lanes. Many pro- 
posals have been made that title to space devices remains in the 
launching or operating party, and that the latter should have the 
right to repossession of the craft, its parts, and the return of per- 
sonnel. In this context it may be suggested that a mobile space 
platform may be compared to an artificial island. This conclusion 
is buttressed by the basic principle that outer space may be freely 
used and exploited, subject to the right of each satellite to use the 
orbit into which it has been placed. Such craft, so long as it is 
used for peaceful, i.e., nonaggressive and beneficial, purposes, may 
claim exclusive use of its orbital pattern with the corollary right 
that there should be no unreasonable interference with the first 
occupier's use. To provide for maximum benefits there is an urgent 
need for a system of prelaunch registration and inspection pro- 
cedures and regulated landing processes. The absence of such pro- 
cedures, however, need not detract from the validity of this analogy, 
nor does the analogy detract from application to outer space of the 
basic high seas analogy. In the words of Mr. Justice Story : 

Upon the ocean, then, in time of peace, all possess an entire 
equality. It is the common highway of all, appropriated to the 
use of all; and no one can vindicate to himself a superior pre- 
rogative there. Every ship sails there with the unquestionable 
right of pursuing her own lawful business without interruption ; 
but whatever may be that business, she is bound to pursue it in 
such a manner as not to violate the rights of others. 421 
The acceptance of this fundamental principle, although it provides 
no detailed help as to the boundary between sovereign airspace and 
the free outer space of Resolution 1721 (XVI), can contribute mate- 
rially to the evolution of the law of outer space. 

It may be concluded that outer space has drawn heavily on the 
legal concept of freedom of the seas and will continue to do so. At 
the present time the concept of territorial waters has only a minimal 
relation to sovereignty in airspace, and aside from the need of the 
corollary of freedom of innocent passage for spacecraft in air- 
space, it is very speculative as to whether this doctrine can be 
accommodated to the needs of outer space. Assuming that there will 
be a precise agreement establishing the upper limits of sovereignty 
in airspace, it is entirely foreseeable that outer space will receive 
with favor the analogy of contiguous zones extending spaceward to 



The Marianna Flora, 11 Wheat 1 (182G). 



254 

appropriate distances from the joint airspace-outer space bound- 
ary. 422 Additionally, since both the continental shelf and artificial 
islands concepts are based on the right to engage in the reasonable 
use of known resources, they have assisted in establishing the prin- 
ciple that outer space may be reasonably used or exploited, including 
the right to obtain from it scientific and technical data beneficial to 
mankind. 

b. Airspace 

As with the high seas and related maritime areas, there has been 
much serious analysis to determine whether the legal principles and 
rules applicable to airspace have any reasonable bearing on outer 
space. Although, as previously noted, the doctrine of sovereign 
control over airspace has not been accepted for outer space, 423 it is 
universally accepted that each state has complete and exclusive sov- 
ereignty over airspace above its territory and territorial waters. 424 

The law of territorial waters, and, to a much lesser extent, the 
law of airspace, place emphasis upon practical needs for innocent 
passage. Innocent passage requires conduct which is not prejudicial 
to the peace, good order, or security of the coastal or subjacent state. 
Thus, while a state may arbitrarily exclude anyone from its air- 
space, it must accept limitations upon full sovereignty over terri- 
torial waters. Passage in territorial waters is subject to national 
laws and regulations, but the latter in turn are subject to appropriate 
international agreements and other rules of international law. The 
same may become true respecting the use of a state's airspace. 

In view of the fact, heretofore stressed, that future landing pro- 
cedures for spacecraft will involve long flights at relatively low 
altitudes above the subjacent territorial areas — perhaps, even includ- 
ing extended passage through national airspace — it now appears 
likely that the law of outer space will necessarily be required to take 
account of, and probably adopt a substantial portion of, the analogy 
of innocent passage through territorial waters. It follows then, that 
if the function of the spacecraft is such that it may claim the right 
of innocent passage through sovereign airspace in the course of 
making a landing, it would appear that its function while in outer 
space must not be dissimilar, and vice versa. However, for this 
claim to have validity, it may well be that a requirement as to con- 



422 Seara-Vazquez, "The Functional Regulation of the Extra-Atmospheric 
Space," Second Colloquium 143-144 (1960). 

4 - ? ' Supra, pp. 242-248. 

424 Convention on International Civil Aviation, Chicago, 1944, Article I ; and 
Convention on the Territorial Sea and the Contiguous Zone, Article II. 



255 

sistency of conduct, e.g., a guarantee of peaceful use, on the part of 
the spacecraft, or similar consistent conduct by its owner, will be 
required as a condition precedent to the enjoyment of the privilege 
of innocent passage in airspace. This, of course, creates no problem 
when accepting the basic principle that spacecraft must be used for 
peaceful, i.e., nonaggressive or beneficial, purposes. The acceptance 
of this innocent passage analogy, in the context of peaceful purposes, 
serves to place great emphasis on the need to achieve specificity as 
to the content of the spectrum of peaceful purposes. 

Although the analogy of sovereign control over airspace has been 
rejected for the regime of outer space, the broad sea and the limited 
airspace analogy of innocent passage has a direct bearing on space 
conduct and space law and has already found its way into the law 
in the form of United Nation Resolution 1721 (XVI). 425 There is, 
however, an urgent need to specify, through an express international 
agreement, the rights and duties of spacecraft during the course 
of such innocent passage while engaged in landing procedures. 
Certainly suitable registrations, inspections, and notifications of 
proposed launches, prior to launching, may assist in determining 
whether a spacecraft returning from outer space and passing through 
airspace will be entitled to claim a right of innocent passage, 
c. Land 

Since, as has been asserted, outer space and celestial bodies are 
oriented to serve man's needs, it is not surprising that proprietary 
rights relating to the ownership and possession of land have a 
direct bearing on man's new space dimension. Resolution 1721 
Al.(b)(XYI) promulgated the principle that "Outer space and 
celestial bodies are free for exploration and use by all States in 
conformity with international law and are not subject to national 
appropriation." The intent behind this principle was to avoid na- 
tional claims of sovereignty, including exclusive use over claimed 
areas, for all or parts of outer space and for celestial bodies. How- 
ever, as previously suggested, 426 this does not appear to prohibit the 
creation of a valid claim for possessory rights respecting the oc- 
cupancy of a given orbital pattern, although the extent of such 
rights will necessarily become the subject of a convention providing 
for monetary damages for destruction or interference. Furthermore, 
the right, if any, to reoccupy such an orbital pattern following 
removal or destruction of the space vehicle through whose activity 
or presence the initial claim was made must also be determined. 

425 Annex 2, infra, at pp. 443-446. 

426 Supra, pp. 252-253. 



256 

McDougal has examined the possibility that exclusive claims may 
be made relating to minerals located on celestial bodies, while at 
the same time supposing that spatial-extension resources such as 
the void of space, the surfaces of celestial bodies and contiguous 
space surrounding celestial bodies "will be maintained as sharable 
resources, open to free access by all." 427 He has seen the value of 
the doctrine of occupation respecting the possible future develop- 
ment of a rule of law applicable to celestial bodies pertaining to 
the possibile exclusive acquisition by individuals and others of fixed, 
and limited, surface areas. McDougal implies that the use of a land 
analogy depends upon the following contingency: "In the eventu- 
ality, however, that the general community should come to tolerate 
the exclusive acquisition of the surfaces of the celestial bodies, it 
would still appear in the common interest that the community should 
impose the most stringent requirements of effective occupation for 
the establishment of such exclusive acquisition." 428 If this eventu- 
ality were to come to pass, certain analogies relating to the manner 
of staking out claims, registration, and the provision of notice 
might be borrowed from earthly practices. 

While previewing without forecasting, the possibility of establish- 
ing claims to resources — but not to celestial bodies, per se — McDougal 
has emphasized the common interests to be served by holding the 
great bulk of space resources "open for inclusive enjoyment by all, 
and not made subject to exclusive acquisition." 429 

It is generally agreed today, and certainly this is the position of 
the major resource states, that sovereignty is not applicable to outer 
space and celestial bodies. This has been explicitly stated by the 
Soviet Premier, Mr. Khrushchev, in asserting that the depositing 
of Soviet pennants on the moon has given rise to no special claims 
on that planet. With the clear prospect of manned lunar flights and 
the probable manned exploration of the surfaces of celestial bodies, 
it may well be that in the future there will arise legal claims — not 
for celestial bodies in their entirety — for specific surface segments 
or areas which have been brought under the type of domination and 
control envisioned by McDougal. Should this come about, it would 
appear that there would not be any serious objection to the estab- 

427 McDougal, Lasswell, Vlasic and Smith, "The Enjoyment and Acquisition 
of Resources in Outer Space," 111 University of Pennsylvania Laic Review 634 
(1963). 

428 Ibid., 635. Compare, R. Y. Jennings, The Acquisition of Territory in In- 
ternational Law 36-52 (1963). 

429 Ibid., 636. See pp. 551-552 for a distinction between three types of re- 
sources : Spatial Extension, Flow, and Stock. 



257 

lishment of proprietary rights over segments or parcels following 
the property law analogies of the earth. It should be noted, however, 
that such activity as man may be able to devise and implement on 
celestial surfaces must conform to the overriding principles hereto- 
fore acknowledged, namely, use and exploration for peaceful pur- 
poses. The establishment of earth rules for property, tort, criminal 
law, and other similar types of situations would best be evidenced 
by express international agreements. 

d. Antarctica 
The successful negotiation, signature, and ratification of the Ant- 
arctic Treaty of December 1, 1959, providing continually for its 
use for exclusively peaceful purposes has given encouragement to 
those who seek to minimize international tension and discord and 
to maximize legal processes. Thus, Article I of the Treaty provided : 

1. Antarctica shall be used for peaceful purposes only. There 
shall be prohibited, inter alia, any measure of a military nature, 
such as the establishment of military bases and fortifications, 
the carrying out of military maneuvers, as well as the testing of 
any type of weapons. 

2. The present treaty shall not prevent the use of military 
personnel or equipment for scientific research or for any other 
peaceful purposes. 430 

A strong parallelism as to substance, if not as to form, exists respect- 
ing permitted uses of Antarctica and outer space. 

Prior to the suspension of the need to make national claims and 
self-serving statements reserving the right to make claims of sov- 
ereignty by reason of the provisions contained in Article IV of 
the Antarctic Treaty, the Legal Adviser of the Department of State 
had pointed to the existence of an analogy between the Antarctic 
and outer space. It was his view, in 1958, that at no time had the 
United States "conceded that we have no rights in the higher regions 
of space." 431 It was also his view that there was no need to make a 
claim respecting outer space until after man had demonstrated a 
capability to exist outside the atmosphere, and that even after this 
had been ascertained there would be no cause to make an early claim 
to protect national rights. He stated : 

A very apt analogy is afforded by the Antarctic. There, for 

many, many years, the United States has been engaged in activ- 

430 41 Department of State Bulletin 912 (1959); 54 A.J.I.L. 476 (1960). 
(Italics added.) 

431 "Major Aspects of the Problem of Outer Space," 38 Department of State 
Bulletin 966 (1958). 



258 

ities which under established principles of international law, 
without any question whatsoever, created rights upon which the 
United States would be justified in asserting territorial claims, 
that is to say, claims of sovereignty over one or more areas of 
the Antarctic. Notwithstanding this fact the United States has 
not asserted any claim of sovereignty over this portion of Ant- 
arctica, although the United States has, at the same time, made 
it plain that it did not recognize any such claims made by other 
states. 432 
It was his view that the United States had expressly reserved rights 
and that its nonclaim status had not derogated from the rights 
flowing from its numerous activities in the area. 

The validity of the Becker analogy between Antarctica and outer 
space has been analyzed by Lissitzyn who has referred to it — in the 
context or sovereignty only — as "not altogether convincing/' 433 The 
Lissitzyn assessment was published prior to the 1959 Twelve Power 
agreement on Antarctica, and it was his conclusion that both for 
practical and legal reasons it was "unlikely that the legal status of 
outer space will in the future resemble that of Antarctica." 434 

After these views were expressed, the asserted analogy between 
outer space and the Antarctic respecting sovereignty has been en- 
tirely dissipated. The December 20, 1961, General Assembly Resolu- 
tion 1721 (XVI) specifically negated the concept of sovereignty 
in outer space. In commenting on the meaning of this resolution to 
the Committee on the Peaceful Uses of Outer Space, the American 
representative, Ambassador Plimpton, stated on May 4, 1962, "We 
have rejected the concept of national sovereignty in outer space. 
No moon, no planet, shall ever fly a single nation's flag. These 
principles are sound principles, and I take this opportunity to 
re-endorse them heartily on behalf of the United States Govern- 
ment." 435 



432 Ibid. His reference to the effective role of national "activities" in Ant- 
arctica parallels the position taken herein that the active use of outer space 
for peaceful purposes has helped to establish a pattern of customary interna- 
tional law. 

433 Lissitzyn, "The American Position on Outer Space and Antarctica," 53 
A.J.I.L. 131 (1959). 

^Ibid. Compare, Kucherov, "Legal Problems of Outer Space," Second Col- 
loquium 69 (1960). 

435 Z7.2V. Doc. A/AC.105/PV.2, 13-15. Compare, Feldman. "The Report of the 
United Nations Legal Committee on the Peaceful Uses of Outer Space: A 
Provisional Appraisal," Second Colloquium 21 (1960). 



259 

In another context, that of managing international relations in 
areas where sovereignty either does not exist (outer space) and in 
areas where if it does exist is now held in suspension (Antarctica), 
certain analogies or parallelisms exist. The problem of control is 
generic to both areas, and it is entirely possible that processes and 
principles acceptable in one area would be beneficial to mankind in 
the other area. 436 As has already been pointed out, the two major 
resource nations have discussed in the context of disarmament in outer 
space the provision, found in Article I of the Antarctic Treaty, 
prescribing the testing of any type of weapons. 437 

Several writers have noted the analogous relationship between 
outer space and Antarctic problems. The most detailed approach to 
common problems has been made by Faria who has developed a 
draft covenant for outer space following much of the language con- 
tained in the Antarctic Treaty. Thus, paragraphs 1 and 2 of his 
first article accept the concepts of Article I of the Antarctica Treaty, 
and provide: 

1. The outer space, the Moon, and all uninhabited space 
bodies shall be used for peaceful purposes only. There shall be 
prohibited, inter alia, any measures of a military nature, such 
as the establishment of military bases and fortifications, the 
carrying out of military maneuvers, as well as the testing of 
any type of weapons. 

2. The present treaty shall not prevent the use of military 
personnel or equipment for scientific research or for any other 
peaceful purpose. 438 

His proposals admit the need of a space regulatory agency, acknowl- 
edge the need for space rules, and make provision for penalties in 
the event of infraction. Like the drafts presented at the United 
Nations and those of private groups, the Faria proposals seek a 
structured regime of law, including controls, for outer space, 
e. International Rivers and River Basins 

The discussions concerning the legal rights over international 
rivers and river basins have, in a very real sense, demonstrated 
opposing viewpoints which exist with respect to rights in space. 






436 Jessup and Taubenfeld, Controls for Outer Space and the Antarctic 
Analogy 137-282 (1959). 

437 Supra, pp. 257-258. 

438 Faria, "Draft to an International Covenant for Outer Space — The Treaty 
of Antarctica as a Prototype," Third Colloquium 125 (1961). 



260 

In 1958 the Department of State made public a Memorandum 
entitled The Use of Systems of International Waters.* 39 This docu- 
ment placed emphasis upon the fact that general customary inter- 
national law contains principles, rules, concepts, and standards equal 
to the task of effecting an equitable distribution of the resources of 
international rivers and river basins. 440 

Another point of view on international river and river basin 
rights has been put forward by Berber, who has urged that the only 
way to establish a regime of law for such areas is through the 
express process of treaty making. 441 It is true so far as the law of 
outer space is concerned that a few nations have asserted it can be 
the product only of express agreement. This view, however, has 
been almost universally rejected by nations not making the assertion, 
and as has been heretofore expressed, existing principles of space 
law have been the product of practice and usage. These have now 
ripened into a customary international law of space. Hence, it is 
not possible to assert that there exists — even assuming, but certainly 
not admitting the validity of the Berber premise — a valid analogy 
between the processes of the law of outer space and the assumed 
exclusively formal processes of rivers and river basins. 

There is abundant reason to believe that customary international 
law establishing rights and duties respecting international rivers 
.and river basin resources now exists. If this be true, then the ques- 
tion arises as to the content of such law which may have some appli- 
cation, by way of analogy, to the peaceful use and exploration of 
outer space. 

General principles of law apply to the use of waters of inter- 
national drainage basins. Thus, Lauterpacht has stated : 

The responsibility of a State may become involved as the 
result of an abuse of a right enjoyed by virtue of International 
Law. This occurs when a State avails itself of its right in an 
arbitrary manner in such a way as to inflict upon another 
State an injury which cannot be justified by a legitimate con- 
sideration of its own advantage. * * * The duty of the State 



439 Legal Aspects of the Use of Systems of International Waters with Refer- 
ence to Columbia-Kootenay River System under Customary International Law 
and the Treaty of 1909 (1958). Compare, Griffin, "The Use of Waters of In- 
ternational Drainage Basins under Customary International Law," 53 A.J.I.L. 
50 (1959). Griffin is the author of the departmental memorandum. 

440 Goldie. "Special Regimes and Pre-emptive Activities in International 
Law," 11 InVl d Comp. L.Q. 683 (1962). 

44 i Berber, Rivers in International Law 156-159, 259-266 (1959). 



261 

not to interfere with the flow of a river to the detriment of 
other riparian States has its source in the same principle. 442 
Griffin has noted that the domestic law of a number of important 
states, including the United States, contains principles prohibiting 
the diversion of a stream in a manner strongly prejudicing those 
who might otherwise benefit from such a stream. He has also noted 
the existence of international judicial decisions denying to states 
the use of territorial sovereignty in such a manner as to cause injury 
to another state, and he has concluded that these principles are 
applicable to the use of water resources in such streams. 443 

These are general principles and have no unique applicability to 
water resources. Their application to the peaceful uses of outer 
space follows as a matter of course. Further, the acceptability of 
general customary international law in the field of water uses and 
resources gives additional support to its meritorious application to 
the use and exploration of outer space. 

f . Analogies in Summation 

In summary, it may be said that the application of the analogy 
of freedom of the high seas has been useful and valuable although 
neither the law of the sea nor the law of outer space, by way of 
analogy or otherwise, have been able to offer final assurance as to 
where their boundaries begin. In view of the expected low trajec- 
tories to be employed by space vehicles while returning to earth, a 
critical legal problem of "Innocent passage" for space vehicles 
remains to be resolved. It is to be hoped that the pertinent analogies 
to be drawn from both sea law and air law, as well as general 
principles of law no matter where found, will provide practical 
answers to this situation. General principles, no less than analogies, 
will have to serve the ongoing needs of the space age, for as Mr. 
Justice Frankfurter has pointed out with regard to the employment 
of analogies in the development of air law as it may pertain to the 
established laws of land or sea, "One of the most treacherous tend- 
encies in legal reasoning is the transfer of generalizations developed 
for one set of situations to seemingly analogous, yet essentially very 
different, situations." 444 

Despite this caution it should also be remembered that with the 
advent of the space age, new and important problems are demand- 
ing prompt answers. The instances of the behavior of states and 
their nationals is increasing in volume and variety. This conduct has 

442 I Oppenheini-Lauterpacht, International Law 345-347 (8th ed., 1955). 

443 Griffin, op. cit., 58-59. 

444 Braniff Ainvays v. Nebraska Board, 347 U.S. 590 (1954). 



262 

taken place to a very important degree in the world forum. The 
reasonable control over the uses of outer space, which is afforded by 
international law, should not be unduly arrested by a false inability 
to ascertain the existence of analogous conditions. More affirma- 
tively the development of an adequate space law, through the 
rational processes of analogy, serves many national and community 
values. 



CHAPTER IV 

REASONABLE USES OF OUTER SPACE 

A. THE NATURE OF REASONABLE USE 

Mankind is intent upon exploring and using outer space and 
celestial bodies. He is, however, still endeavoring to arrive at deci- 
sions as to how such areas may be used. From the legal point of 
view the problem presented is this: Under what conditions may a 
great variety of uses and exploratory activities be carried on? 
Further, what, if any, uses or activities may not be engaged in at 
any time? Finally, what, if any, uses or activities generally per- 
mitted may be occasionally prohibited, and, conversely, what, if any, 
uses generally prohibited may be occasionally permitted? When the 
problem is posed in this fashion, it becomes immediately clear that 
the ultimate test of the use and exploration of outer space becomes 
one of reasonableness, and, more particularly, reasonableness in 
the specific factual context of a given situation. The principle of 
reasonable uses implies the importance of control for such uses. 

Patterns of reasonableness have already been developing in the 
international law of outer space. The forces which have contributed 
to a verbal consensus respecting some uses and activities, like the 
forces which have contributed to the development of a limited cus- 
tomary international law of outer space, have been based upon 
practical considerations. This attitude toward reasonable, and there- 
fore legal, conduct has stemmed from the same social complex, 
including the forces of practice and usage, which has provided man 
with a customary international law of outer space. Further, the 
particular consensus achieved in the United Nations concerning the 
substance of draft proposals is indicative of standards of reasonable 
conduct in the space age. Illustrative of this point are the several 
drafts relating to liability for damages caused by space devices, 
rights available to personnel and space vehicles in the event of an 
emergency landing, and common basic principles contained in the 
several draft declarations and international agreements dealt with 
in Chapter III. 1 

1 Supra, pp. 211-228. 
791-405—66 18 



264 

Reasonableness of use of outer space and celestial bodies at this 
time depends on four major legal factors. The first is the existing 
customary international law of outer space. 2 The second is the 
unanimous General Assembly Resolutions 1721 (XVI) of December 
20, 1961, 1802 (XVII) of December 19, 1962, and 1962 (XVIII) 
of December 24, 1963. All have incorporated and promulgated cus- 
tomary international legal principles. The third is the unanimous 
General Assembly Resolution 1884 (XVIII) of October 17, 1963, 
which endeavored to forestall the positioning of weapons of mass 
destruction in outer space. 3 The fourth is the 1963 Moscow Treaty 
banning nuclear weapons testing. 4 These factors are significantly 
influenced by wide-ranging international legal discussions and the 
writings of legal specialists. 5 Furthermore, they have, in an analyti- 
cal sense, made provision for the free use of outer space for peaceful, 
i.e., nonaggressive and beneficial, purposes. By direct provision and 
by implication they place limitations upon the free use of outer 
space for nonconforming uses. In this manner some limits are 
placed on national uses of this environment. 

However, when the concept of national control enters the picture 
it brings with it both affirmative and negative aspects. Thus, free- 

2 Supra, p. 44. 

3 This Resolution provided: "The General Assembly, Recalling its Resolution 
1721 A (XVI) of 20 December 1961, in which it expressed the belief that the 
exploration and use of outer space should be only for the betterment of man- 
kind, 

"Determined to take steps to prevent the spread of the arms race to outer 
space, 

"1. Welcomes the expressions by the Union of Soviet Socialist Republics 
and the United States of America of their intention not to station in outer 
space any objects carrying nuclear weapons or other kinds of weapons of mass 
destruction ; 

"2. Solemnly calls upon all States: 

"(a) To refrain from placing in orbit around the earth any objects carry- 
ing nuclear weapons or any other kinds of weapons of mass destruction, in- 
stalling such weapons on celestial bodies, or stationing such weapons in outer 
space in any other manner ; 

"(b) To refrain from causing, encouraging or in any way participating in 
the conduct of the foregoing activities." U.N. Doc. A/5571; A/RES/1884 
(XVIII) ; U.N. Doc. A/C.1/L.324. 

Background data is contained in "Report of Conference of Eighteen-Nation 
Committee on Disarmament," United Nations Review 42-43 (October 1963). 
The United States position was indicated by Ambassador Stevenson on October 
16, 1963. See "U.N. Calls on States to Refrain from Orbiting Weapons," 49 
Department of State Bulletin 753 (November 1963). 

4 40 Department of State Bulletin 239 (1963). Infra, p. 301. 

5 Compare the writings of Cooper, Gardner, Haley, J. A. Johnson, Lasswell, 
Lipson, McDougal, Vlasic in Authors' Index. 






265 

doni of outer space for peaceful uses means freedom from unilateral 
control so long as the users conduct their activities in a reasonable 
manner. Put in other words, the right of free use depends upon 
reasonableness of that use and imposes a duty upon users not to 
engage in unreasonable activities. Further, the right of free and 
reasonable use relieves a state from the duty of not interfering in 
uses by others when the specific uses by others become so unreason- 
able — as in the case of the intentional use of outer space or celestial 
bodies for aggressive military purposes — as to occasion valid concern 
for international peace, international security, and the requirements 
of legitimate self-defense. 6 

We see then, that in the context of reasonableness — including 
both freedom to use and freedom from uses — control assumes an 
importance of substantial proportion. Mankind's interest in the 
fullest exploitation of the space dimension must not fail to take 
into account the proper expectation that he will not be made the 
subject of unreasonable harms emanating from the heavens. This 
situation has been interpreted by Johnson in the following language : 
The area within which the underlying State possesses the 
right to Veto' the activity of another State must not be per- 
mitted to extend to altitudes which would hamper the freedom 
of space exploration. It is of little value to speak of the freedom 
of outer space if man cannot travel freely to that realm and 
freely back to earth. 7 

In seeking to restrict outer space for reasonable uses, international 
law may proceed along several paths. None has received final and 
authoritative approval, and the problems which face the developing 
law of outer space are those which have long confronted the whole 
gamut of the law. These separate approaches can best be stated in 
the form of interrogations. First, is all human activity in outer 
space permissible pending the imposition of legal restrictions — from 
whatever source derived? This assumes that any conduct is per- 
missible until valid prohibitions exist and have been generally 
acknowledged as binding. Or, is no human activity in outer space 
permissible unless and until sound legal sources provide adequate 
guidance as to its permissibility? In the first situation an answer — 
but not necessarily the correct answer — has been that international 
law's entire coverage extended into outer space even before the 

6 Whether the reaction to unreasonable uses may be collective or individual 
is not being considered at this point. 

7 Johnson, "The Future of Manned Space Flight, and the 'Freedom' of Outer 
Space," NASA Netvs Release, August 4, 1962, pp. 14-15. 



266 

launching of the first orbiting satellite and that the general law 
existing at that time was not violated by that experience. Another 
answer is that because of the uniqueness of the environment, only 
some of the existing legal principles could have application in outer 
space. In the second situation an answer — and again not necessarily 
the correct answer — has been that man's actual conduct precedes 
law, whether customary or express. These questions raise false issues 
by their inclusiveness, e.g., "all" or "no" human activity. Still, the 
basic issue, as presented to the World Court in the Lohts Case, 
requires analysis so that doubt concerning legal rights in outer 
space may be put aside. 8 

It will be recalled that in the Lotus Case, it was argued by France 
that under international law, France should exercise exclusive juris- 
diction over its national because past practices pointed to a valid 
rule having this legal effect. The government of France also urged 
that Turkey might exercise jurisdiction only if it were able to point 
to a then existing and applicable rule of international law permitting 
a trial in Turkey. The Court held, in effect, that international law 
was not all encompassing — that there was no existing or applicable 
rule restricting or denying the exercise of jurisdiction by Turkey. 
It was concluded that the conduct of Turkey was not violative of 
international law in the absence of a rule prohibiting Turkey's 
exercise of jurisdiction, and, finally, that the exercise of jurisdiction 
by Turkey was appropriate. 

However, the holding in the Lotus Case that international law 
is not all-inclusive and that it has prohibited only that which in 
fact is so expressed must be applied reasonably and in context to 
the free and peaceful use of outer space. It must be kept in mind 
that customary international law is but one part of international 
law and that its utility generally is to give legal approval to reason- 
able and measurable past practices of an affirmative type. Thus> 
its value lies largely in giving approval to existing practices which 
protect property and commercial values. Yet, at the same time,, 
custom has its other face. By not approving aggressive conduct, it 
tends to inhibit or negate the legality of such behavior. Although 
customary international law has lacked the resources to deny, in an 
express and affirmative manner, the use of outer space for aggressive 



8 The S.S. Lotus {France v. Turkey), P.C.I.J., Ser. A, No. 10; 2 Hudson, 
World Court Reports 20 (1935). This case held that a state's wide measure of 
discretion is subject to existing legal prohibitions and that only where such 
prohibitions were lacking might "every state remain free to adopt the prin- 
ciples which it regards as best and most suitable." 



267 

and nonbeneficial purposes, one may not conclude that such aggres- 
sive and nonbeneficial uses are therefore either reasonable or permis- 
sible. One must look to the substantive content of international law 
as contained in its broad principles and rules to support the con- 
clusion that aggressive international conduct is unlawful in all 
environments. 9 This view is clearly valid and is upheld by both 
general international law and by such express international agree- 
ments as the Charter of the United Nations and by the Kellogg- 
Briand Pact of 1928. 

The Lotus Case does not constitute a precedent in favor of unre- 
stricted national uses and activities in outer space. It is by now much 
too late to doubt the availability and the applicability of known 
international legal principles to the use and exploration of outer 
space and celestial bodies. This was generally regarded to be true 
prior to the adoption of Resolution 1721 (XVI). The Resolution, 
in relying on general international law and on the Charter of the 
United Nations, makes this fact explicit. However, since interna- 
tional law does not consist of a detailed and all-encompassing set 
of prohibitions, admittedly where this form of law has not yet 
developed, a state may engage in such specific activities as do not 
fall within prohibitory principles and rules. As to such specific 
forms of national conduct, a state may engage in reasonable conduct 
until inhibited by clearly established principles and rules of inter- 
national law. 

In view of the foregoing, and as related to specific types of space 
conduct, it is possible to assert in the course of the development of a 
satisfactory law of outer space that reasonable space activities may 
be regarded as permissible until prohibited. This is true where 
such activities are peaceful, e.g., nonaggressive and beneficial. The 
•other presumption, suggested by some, is that in the absence of a 
•detailed and encompassing set of legal prohibitions, all forms of 
space activity are permissible unless and until the sources of inter- 
national law indicate the invalidity of such conduct. 

This apparent conflict in method of approach, and consequent 
divergence in the governance of space activities, has, in fact, already 
been resolved. The key is the developing pattern of reasonableness 
as to space uses and activities. Thus, if it is contended that free 
and peaceful uses of outer space are illegal until specifically per- 
mitted, it can be stated that the principle of permissibility for 
peaceful uses has been determined by general customary interna- 
tional law and Resolution 1721 (XVI). On the other hand, if it is 

9 Eastern Extension, etc. Telegraph Co. Ltd., Nielsen's Report 75 (1910). 



268 

argued that space activity is permissible until prohibited by a spe- 
cific and express rule of international law, reference may be had 
to the 1963 Moscow Xuelear Test Ban Treaty and to the General 
Assembly Resolution 1884 (XVIII). It may also be noted that this 
view has never been carried to the point where it is assumed that 
conduct of any and all kinds — in particular, intentionally aggressive 
activity — was thought to have the approval of international law. 
In fact, outer space is not a legal vacuum, and general principles 
of law as a part of international law have been recognized in Gen- 
eral Assembly Resolution 1721 (XVI) as applying to conduct in 
outer space and on celestial bodies. 

The contest between permissible and nonpermissible conduct must 
be resolved in a structured space law regime by the concept of rea- 
sonableness. Xo brief need be filed on behalf of the merits of the 
concept of reasonableness, except to say that such a doctrine is 
based upon reciprocal benefits and on a generalized ongoing mutual- 
ity of interest. Reasonableness emphasizes the essential values of a 
world community of interests, and when conditioned by acceptable 
international tolerances provides the basis for effective and coopera- 
tive international relations. One of the greatest virtues of the con- 
cept of reasonableness is that it does not seek to provide ultimate 
answers in advance of constantly modifying problems. In the context 
of the space age, the value of the concept of reasonableness will be 
measured against its record of service to the dynamic and continuing 
needs and aspirations of mankind. 

B. INSTANCES OF REASONABLE USE 

In view of the fact that space capabilities are properly regarded 
as elements of national strength and prestige, and in view of the 
constant competition among and between nations for leadership, 
power, prestige, and security, it should not be surprising that there 
is not a complete consensus among nations as to the reasonableness 
of all uses of space devices. Or, perhaps it is not surprising that 
there has been quite general agreement that many space uses may 
be regarded as reasonable. But, this is always subject to the reserva- 
tion that under certain circumstances uses which might generally 
be regarded as reasonable may become unreasonable. This is true 
because the complex qualities of space devices are such as to enable 
them to be used in many instances for quite varied purposes. The 
United States has frequently insisted that this fact must be taken 
into account in the development of space law. Thus, Senator Gore 
told the First Committee of the United Xations in December 1962, 



269 

"There is, in any event no workable dividing-line between military 
and nonmilitary uses of space. For instance, both American and 
Russian astronauts are members of the armed forces of their respec- 
tive countries; but this is no reason to challenge their activities or 
or to deprecate their accomplishments. A navigation satellite in 
outer space can guide a submarine as well as a merchant ship. The 
instruments which guide a space vehicle on a scientific mission can 
also guide a space vehicle on a military mission." 10 

The state exists for a variety of purposes. Among them it seeks to 
protect its citizens and its ongoing existence, and in order to do so 
it utilizes the most modern scientific and technological equipment 
known to man. The manner in which such devices are employed 
depends upon man's intent, expectations, and the surrounding factual 
circumstances. Thus, such devices may be used for peaceful purposes. 
Yet in many situations they may also have utility for the carrying 
on of war. Nonmilitary uses, it may be assumed, are peaceful ones. 
On the other hand, it does not follow that military uses need be non- 
peaceful ones, for the function of a military use may be to provide 
information or data in such a way as to deter or prevent the outbreak 
of war. Peaceful, and hence reasonable uses of outer space, may in- 
clude military uses when the latter are nonaggressive and beneficial 
in their purpose. Therefore, it may be concluded that the reasonable- 
ness of space activity is determined not so much by the possible 
military uses or capabilities of space devices, but, rather, by the non- 
existence of aggressive intent or by the absence of unpeaceful cir- 
cumstances. Peaceful uses may be converted into unreasonable uses 
by means of aggressive military employment. 1 



11 



10 U.N. Doc. A/C.1/PV.1289, 13. 

11 Feldman has traced the early meaning assigned to the term "peaceful," 
and has concluded that in United States municipal law and in international law 
it means "nonaggressive" rather than "nonmilitary." Feldman, "The Report of 
the United Nations Legal Committee on the Peaceful Uses of Outer Space: 
A Provisional Appraisal," Second Colloquium 23-24 (1960). In his view the 
foregoing meaning "also appears to be the most reasonable interpretation." 
Ibid. The problem of defining aggression has been noted by Stone, Aggression 
and World Order 201-217 (1958) and by the International Law Commission. 
Compare Sohn, "The Definition of Aggression," 45 Virginia Law Review 697 
(1959). Writers on international law have generally regarded peaceful uses 
to consist of nonaggressive uses. Thus, Meyer has stated that "In my opinion 
the term 'peaceful' must be understood in the sense of 'nonaggressive.' " Meyer, 
"Legal Problems of Outer Space," 28 The Journal of Air Laic and Commerce 
341 (1962). He has also stated "To interpret the term 'peaceful' in the sense 
of 'nonmilitary' would lead to the consequence that no military action could 



270 

The primary test of aggressive purpose is intent. 12 However, the 
context in which the intent is formulated also materially affects the 
concept of peacefulness and reasonableness of purpose. 13 

Recent discussions at the United Nations have endeavored to make 
it clear that "peaceful" means "nonaggressive." Thus, the Belgian 
representative told the legal subcommittee of the Committee on the 
Peaceful Uses of Outer Space that "the term 'peaceful' in the Com- 
mittee's title was the antonym of 'aggressive' and not of 'military.' " 14 
The Japanese representative has also contrasted peaceful with ag- 
gressive. He told the subcommittee in April 1963, that "The basic 
theme of the law of outer space must be that outer space should be 
used for peaceful purposes only and that its use for aggressive pur- 
poses such as nuclear testing or the placing of weapons of mass 
destruction in orbit should be prohibited." 15 

The Italian delegate told the subcommittee at the same time that 
"the most urgent issue was the banning of all activities of an aggres- 



be 'peaceful.' But such an interpretation would be in contradiction to all prac- 
tice." Ibid. 

Compare also Kittrie, " 'Aggressive' Uses of Space Vehicles — the Remedies 
in International Law," Fourth Colloquium 198-219 (1961) ; Wright, "Legal As- 
pects of the U-2 Incident," 54 A.J.I.L. 846-847 (1960) ; Beresford, "Surveillance 
Aircraft and Satellites : A Problem of International Law," 27 The Journal of 
Air Law and Commerce 108-109 (1960); Welsh, "Peaceful Purposes: Some 
Realistic Definitions," 1961 Air Force and Space Digest 73 (November 1961). 

Crane has noted the manner in which the Soviets have employed "aggres- 
sion" in space discussions. He has said "The fourth element of peaceful co- 
existence emphasized by the Soviet representative to the U.N. Space Committee 
is the principle of nonaggression. The term 'aggression' is used by the Soviets 
to stigmatize any military, political, or economic action or alleged preparation 
for such action which is adverse to Soviet strategic interests." Crane, "Basic 
Principles in U.S. Space Policy," 22 Federal Bar Journal 175 (1962). 

12 Halle, in Goldsen, ed., International Political Implications of Activities in 
Outer Space 88 (1960). 

13 Illustrations have been given by Halle and Schelling. The former has in- 
dicated that the emplacement of a satellite above a country might be regarded 
as peaceful, but that the positioning of a satellite containing a weapon of mass 
destruction above a state "is such a threatening gesture that it is intolerable." 
Schelling has noted that "One might try to make an arbitrary distinction be- 
tween military related activities and nonmilitary related activities in such 
things as communication, which is obviously borderline." Ibid., 89. 

McDongal, Lasswell and Vlasic, Law and Public Order in Space 304-306 
(1963), have noted that reasonableness must take into account the factor of 
■claims to occasional exclusive competence to use an environment which nor- 
mally would be open to the peaceful use of all. 

14 U.N. Doc. A/AC.105/C.2/SR.19, 4. 

15 U.N. Doc. A/AC.105/C.2/SR.22, 10-11. 



271 

sive nature in outer space." 16 During the same period, Mr. Meeker^ 
United States Department of State representative on the subcommit- 
tee, stated "For several years the United States has consistently ad- 
hered to the view that outer space should be used for peaceful — that 
is, nonaggressive and beneficial — purposes. However, pending the 
achievement of disarmament agreements, the test of any space activ- 
ity cannot be whether it is military or nonmilitary, but whether it is 
consistent with the United Nations Charter and other obligations of 
international law." 17 

Not all of the representatives on the subcommittee agreed. The 
Czech delegate told the group in April 1963, that his country wished 
to prohibit the use of outer space for espionage and for the dissemi- 
nation of war propaganda, but that he had "some doubts regarding 
the need for a provision prohibiting the use of outer space for war 
purposes. While it sympathized with the objective, it believed that 
the question was outside the Sub-Committee's terms of reference. 
Moreover, the provisions of Article 2 (4) of the Charter and of 
operative paragraph 1 (a) of General Assembly Resolution 1721 
(XVI) appeared to cover the question that was involved." 18 Thus,, 
the Czech delegate, it would appear, was more concerned that outer 
space should not be used for warlike purposes, for "espionage" as 
he understood it, or for war propaganda than for its not being used 
for aggressive purposes. 

The general tenor of legal opinion at the United Nations has been 
to consider that outer space, celestial bodies, and devices positioned 
there should not be used for aggressive purposes, and that nonaggres- 
sive military purposes were within the range of peaceful purposes* 
At present, nuclear weapons tests in the atmosphere, in outer space, 
and underwater, and the storing of weapons of mass destruction in 

16 U.N. Doc. A/AC.105/C.2/SR. 20, 4. 

17 Meeker, "Observation in Space," Department of State Press Release, No. 
191 (Revised), April 12, 1963, p. 6. Senator Gore in December 1962, had stated 
at the First Committee : "It is the view of the United States that outer space 
should be used only for peaceful — that is, nonaggressive and beneficial — pur- 
poses. The question of military activities in space cannot be divorced from the 
question of military activities on earth. To banish these activities in both 
environments we must continue our efforts for general and complete dis- 
armament with adequate safeguards. Until this is achieved, the test of any 
space activity must be not whether it is military or nonmilitary, but whether 
or not it is consistent with the United Nations Charter and other obligations 
of international law." U.N. Doc. A/C.1/PV.1289, 13. 

™U.N. Doc. A/AC.105/C.2/SR.20, 9. However, the Hungarian representative 
has urged that peaceful uses must be both "nonmilitary and nonaggressive 
* * *" U.N. Doc. A/AC.105/C.2/SR.26, 4. 



272 

outer space do not fall within the range of permitted legal uses. The 
United States has stated on a number of occasions that it has no in- 
tent to place weapons of mass destruction in space, and has consis- 
tently invited the Soviet Union to conform to the same policy. 19 

Before turning to a further analysis of reasonable uses of outer 
space it is necessary to call attention to the problem of gaining access 
to and of returning from outer space. This involves ingress and 
egress through airspace. The free use of outer space could be effec- 
tively prevented if standards of reasonable use of the airspace on the 
part of space vehicles — including both rocket propelled and X-15 and 
X-20 prototypes — are established which depart from the standards 
applied to such vehicles while they are situated in outer space. It is 
probable that in the future such vehicles, when returning to earth, 
will transit for long distances through areas which have been con- 
sidered as airspace and, as such, subject to the full sovereignty of the 
subjacent state. 

Relatively little attention has been given to the express solution 
of this essentially legal problem. As has been pointed out previously, 
no nation has yet protested the orbiting of spacecraft. This has been 
interpreted to mean that such tacit consent has resulted in the ex- 
istence of a rule of customary international law on this particular 
subject. 20 The problem of transit through atmospheric areas has been 

19 President Kennedy in his press conference of October 9, 1963. stated that 
no formal agreement existed between the United States and the Soviet Union 
to ban nuclear weapons from outer space. He said : "The United States has 
stated it would not put weapons in outer space. The Soviet Union has stated 
that it does not intend to do so. Some day they may decide to do so, so we 
obviously have to take our own precautions. But we don't intend to, though 
we intend to protect our security. We are glad to hear the Soviet Union does 
not intend to. This is a matter, it seems to me, that can best be handled not 
through any bilateral agreement but as a General Assembly matter, because 
other countries may some day have the same capability, and I think every 
country should declare that they are not going to put atomic weapons in the 
atmosphere which could threaten not only the security of a potential adversary 
but our own security, if for some reason the weapon should miscalculate and 
descend on us. I think it is a good idea to keep them out of the atmosphere." 
New York Times, October 10, 1963. For U.N. Resolution 1884 (XVIII), October 
17, 1963, see supra, p. 264. See generally, infra, p. 462. 

20 The analogy from the law of the sea of innocent passage has been 
noted by Goedhuis. He has stated that "if the principle that outer space 
is to be considered as 'res communis omnium' is accepted, then as a neces- 
sary corollary, freedom of innocent passage (innocent in the sense of it 
not being prejudicial to the peace, good order or security of the underlying 
State) through the space which is not considered to be outer space, should be 
recognized." "The Question of Freedom of Innocent Passage of Space Vehicles 
of one State through the Space above the Territory of another State which is 



273 

commented on at the U.N. legal subcommittee by the Mexican dele- 
gate, who, in referring to the launching of spacecraft and their sub- 
sequent transiting through the atmosphere, stated : "In that respect, 
a conflict with the old laws seemed to have arisen, and the nonspace 
Powers had accepted new standards in keeping with the general free- 
dom. The implication of those new standards should be considered 
in greater detail." 21 

Substantial benefits are still to be realized through the free and 
peaceful use and exploration of outer space and celestial bodies. Ac- 
cordingly, it might be argued that all the uses of spacecraft which 
are now considered to be reasonable in outer space should also be 
considered reasonable in airspace, at least at such time as spacecraft 
are engaged in normal launch and return. In order for spacecraft 
to depart from and return to the earth without disrupting typical 
operational activities in the airspace and on the surface, it will be 
necessary to arrive at express and detailed international agreements. 
However, it is submitted that the legal principles permitting reason- 
able egress from national territory and return thereto by the same 
spacecraft for peaceful purposes have been clearly formulated. 22 Ad- 
ditionally, there is need for an express international agreement fixing 
the upper limits or zones of the atmosphere in which the subjacent 
state exercises its not unlimited sovereignty. Further, with respect 
to spacecraft, pending the express formalization of a rule of innocent 
passage through the airspace of another nation, a state may waive 
its sovereignty in order that space vehicles may be used for reason- 
able and peaceful purposes. However, the need for such an express 
international agreement on innocent passage does not invalidate the 
existing principle of space law which permits space vehicles, of the 

not Outer Space," Second Colloquium 43. Compare, McDougal, Lasswell and 
Ylasic, supra note 13, at 197-8, 320-359; and Haley, Space Laic and Govern- 
ment 69-70 (1963). On the other hand, Machowski, a Polish writer on air and 
space law, considers the matter to be somewhat academic. He nonetheless 
calls specific attention to national sovereignty over superjacent airspace. 
'Certain Aspects of the Right of Innocent Passage of Space Vehicles," Fourth 
Colloquium 59. Compare Horsford, "Spy Satellites and The Law," 2 Interna- 
tional Affairs 310 (1962) who has stated: "It seems that a right of innocent 
passage will have to be provided through the airspace of adjoining states for 
outward and returning spacecraft, as there would otherwise be an infringe- 
ment of sovereignty of these states." See also Williams, "The Law of The 
Sea : A Parallel for Space Law," Department of the Army, Pam 27-100-22, 
Military Law Review 168 (October 1963). 

21 U.N. Doc. A/AC.105/C.2/SR.18. 7. 

22 Infra, pp. 200-253. 



274 

type currently in use, to operate peacefully in those areas they have 
been using since 1957. Within the context of present space practices 
and activities, this principle has already been established. In short, 
an express agreement is required to regulate the details of reasonable 
and peaceful operational activities of spacecraft at low altitudes. 

Reasonableness of use may be examined under two basic questions. 
First, is conduct so inherently destructive of the preferred values of 
mankind that it cannot be tolerated ? Second, is conduct to be deemed 
unreasonable because of a failure on the part of the resource state 
to conform to agreed standards which have been designed to modify, 
and perhaps ameliorate, legitimate national concerns for interna- 
tional peace and security and self-defense? 

In view of the hybrid uses of which space vehicles are capable, 
it is not possible to state categorically that there is complete agree- 
ment as to the characteristics of a reasonable use. It is for this reason 
that the major resource nations are in disagreement as to certain 
uses. The United States has taken the position that the use of obser- 
vational satellites is a peaceful, and therefore a reasonable one. The 
Soviet Union, on the other hand, has contended — with the support of 
members of the Soviet Bloc — that observation by satellite of sub- 
jacent surface areas within the Soviet Union constitutes a form of 
"espionage." This contention has been based on the groundless as- 
sertion that such "espionage" is violative of international law. The 
legality of engaging in observation from space will be discussed 
below. 23 

The United States has also taken the position that the use of com- 
munications satellites is a peaceful, and therefore a reasonable one. 
The Soviet Union has contended — again with the support of members 
of the Soviet Bloc — that the dissemination of certain ideas which 
have been described as using outer space for "propagating war, 
national or racial hatred or enmity between nations is inadmis- 
sible." 24 This contention has generally been urged under the heading 
of "war propaganda." Soviet concern has been based on the belief 



23 Infra, pp. 277-295. 

24 U.N. Doc. A/AC.105/12, Annex 1, 2. This is Paragraph 5 of the Soviet 
Declaration of the Basic Principles Governing the Activities of States in the 
Exploration and Use of Outer Space. Infra, pp. 466-468. See pp. 295-300 infra. 
for a discussion of this contention. 

Mr. Fedorenko in a statement of the Committee on Peaceful Uses of Outer 
Space in September 1963 urged the impermissibility of the use of satellites 
"for war propaganda and for propaganda connected with national and racial 
hatred and enmity among peoples." U.N. Doc. A/AC.105/PV 20, 46. See also 
General Assembly Resolution 1962 (XVIII), infra, p. 450. 



275 

that communications satellites will reach a state of perfection 
whereby there may be direct foreign broadcasts to receivers located 
within the Soviet Union. In view of the well known Soviet policy 
of maintaining a closed society, the prospect of having both radio and 
television broadcasts within the uncontrolled grasp of the Soviet 
population has probably been the cause for this position. The Soviet 
passion for secrecy and their concern for inspection of space and mil- 
itary facilities has undoubtedly led to the allegation of "espionage." 
With respect both to "war propaganda" and to the "collection of in- 
telligence information," the Soviet contentions are merely serious 
proposals or claims. Their views cannot be considered to be either 
international law or based on international law. 

There is, however, a limited agreement between the two major re- 
source nations that some observational and communications activities 
carried on in outer space are reasonable. There is also full agreement 
that meteorological activities are reasonable. As to observational 
activities, the Dryden-Blagonravov Summary of Understandings of 
June 8, 1962, called for a world geomagnetic survey, including a joint 
effort to coordinate the launching of two artificial earth satellites 
equipped with magnetometers. The representatives of the two coun- 
tries 

Recognized that data obtained in earth magnetic observatories 
were of particularly great importance for the successful compila- 
tion of a map of the magnetic field of the earth with the aid of 
artificial earth satellites. 25 
Operational programs have been established to engage in these scien- 
tific observations and assurances have been given for the exchange of 
independently acquired data. 

In regard to communications activities, the same Understanding 
made provision for cooperation in 1962 and 1963 "in experiments on 
communication by means of the U.S. satellite 'Echo A-12\" 26 Fur- 
ther, the Understanding announced an intention to "give further 
consideration to the possibilities of cooperation in joint experiments 
using active satellites that may be launched by either nation in the 
future, including the mutual exchange of information on the results 
of such experiments, and to resume discussions of these possibilities 
at * * *" a subsequent series of meetings. 27 

On the subject of meteorology, the Understanding called for the ex- 
change of such "data gathered by each nation from its own experi- 

23 U.N. Doc. A/C.l/880, 5. Annex 22, infra, pp. 482-488. 
2 *Ibid., 5. 
27 Ibid. 



276 

mental meteorological satellites * * * with the understanding that 
such transfers will include selected cloud-cover pictures, especially 
related to storms, votices, fronts and the generation of these phenom- 
ena, with geographical coordinates provided for all pictures se- 
lected, together with nephanalyses based upon the data as a whole 
* * * . The same communication links would be used to exchange 
weather charts, diagrams, vertical cross-sections, and the material re- 
quired for solving the problems of world weather, including the ex- 
tension of prediction periods." 28 In 1964-1965, during the second 
stage of the joint meteorological satellite program, the Understand- 
ing calls for the coordination of launchings by the two nations 
of a system of operational weather satellites. Such a program neces- 
sitates the determination of mutually agreeable launching "schedules 
for the operational satellites, the numbers of such satellites, their 
orbits, and the comparability (to the degree desirable) of the char- 
acteristics of their sensors and the data to be obtained." 29 

The Understanding, by its delineation of specific areas of use, has 
provided a basis upon which to project other uses. Thus, if the 
agreed uses may be considered to be reasonable — and no nation or 
person has denied that the aforementioned uses are reasonable uses 
of outer space — it may be stated that comparable or parallel uses 
may also be reasonable. This is true even though some of the uses 
may be hybrid. But the fact of hybridity is not important. The im- 
portant consideration is that certain uses — even if capable of being 
variously employed in differing situations — have been and are being 
applied for the benefit of men and nations. However, even without 
the consensus contained in the Understanding, it is quite clear that 
those which are both peaceful and beneficial to men and nations may 
be considered to be reasonable. The Understanding is merely illus- 
trative of specific reasonable uses. 

Many other uses of outer space and celestial bodies by means of 
space vehicles also fall within the category of reasonable uses. These 
include, but are not limited to, the following : the gathering of geo- 
detic and navigational information, the gathering of scientific and 
technological information, the gathering of general information 
affecting space research, the gathering of information relating to 
weather forecasting and control, the gathering of information facil- 
itating practical communications services and activities, the gathering 
of information related to general scientific and technological research, 
and the gathering of information facilitating security and defensive 
goals even though of a military nature. Additional reasonable uses 

™Ibid. 
™Ibid., 3-4. 



277 

may be said to include: the employment of space vehicles in ways 
conducive to obtaining experience in operating such vehicles, general 
exploration and experimentation, facilitation of resource exploitation, 
development of know-how in the field of transportation, and for the 
ascertainment of means and processes whereby protection against dis- 
ease and forms of contamination may be achieved. In addition, outer 
space may be used in ways reasonably designed to further man's 
useful social and political activities both on earth and in outer space 
and on celestial bodies. Man may also engage in such additional 
activities required to facilitate any or all of the foregoing, including 
such incidental activities as the recovery of space personnel, vehicles, 
and equipment. Such reasonable activities have their situs both on 
the earth, in the atmosphere, and in outer space. As man continues 
to gain experience in the peaceful use and exploration of outer space 
and celestial bodies, many uses, in addition to these mentioned, will 
qualify as reasonable uses. 30 

C. THE SPECIAL SOVIET VIEW OF OBSERVATIONAL 
ACTIVITIES 

The Soviet social system has produced a national "obsession for 
secrecy * * *" 31 which has conditioned not only the Soviet policy to- 
ward disarmament and arms control, but has also materially affected 
their views of the legality of space vehicles equipped to scan both 
earth and the vast inter-stellar reaches of outer space. Secretary of 
State Rusk has described the Soviet habit of referring to observation 
— inspection in a disarmament context — as "espionage." He stated in 
1962: 

I would not try to say whether this is a deep-seated, traditional 

passion for secrecy on the Russian scene or a consequence of the 



30 Compare, Bloomfield, ed., Outer Space Prospects for Man and Society 
(1962) ; Hogan, "A Guide to the Study of Space Law," 5 St. Louis University 
Law Journal 79-133 (1958) ; Lipson and Katzenbach, The Law of Outer Space: 
Report to the National Aeronautics and Space Administration (1960) ; Odishaw, 
ed., The Challenges of Space (1962) ; Ramo, ed., Peacetime Uses of Outer Space 
(1961) ; Goodwin, Space: Frontier Unlimited 60-83 (1962) ; Goldsen, "Some 
Social Implications of the Space Program," 6 American Behavorial Scientist 
5 (March 1963). First, Second, Third, Fourth Colloquim on the Law of Outer 
Space 1959-1962; and Legal Problems of Space Exploration, A Symposium 
(1961). No protest has been recorded respecting the uses reported to the 
United Nations in connection with the launches engaged in by the U.S.A. and 
the U.S.S.R. These uses are recorded in U.N. Docs. A/AC.105/Inf. 

31 Rusk, "United States Again Calls for Action on Drafting of Disarmament 
Treaty," 47 Department of State Bulletin 245 (1962) ; Rusk, "Basic Issues Un- 
derlying the Present Crisis," 47 Department of State Bulletin 870 (1962). 



278 

belief that secrecy is an important military asset. It is probably 

a combination of these and many other factors. 
But whatever the reasons behind this alleged preoccupation 

with espionage, three things seem to me to be clear. 

One is that the major powers know all that they need to know 

about each other to inflict devastating damage in the event of 

war. Espionage in its classical sense is no longer relevant to this 

great overriding issue. 32 

Even though in a practical sense the two major resource nations 
may know enough about each other's military and defense posture to 
inflict great damage in the event of war, and even though espionage 
in its classical sense may not be relevant to the space age, it is none- 
theless true that the Soviets have asserted that United States observa- 
tional satellites have been engaged in "espionage" of the Soviet 
Union from outer space. By injecting this issue into the legal discus- 
sions carried on in the committees of the United Nations, the Soviets 
have contributed to the difficulty of arriving at express agreements 
on space law principles and rules. 

The Soviet attitude toward "espionage" from superjacent areas has 
been influenced by certain acts of observation or reconnaissance which 
have taken place in Soviet airspace. Soviet authors, in discussing the 
problem of sovereignty over the airspace, wrote in 1956, "At the 
beginning of 1956, large balloons fitted with special apparatus for 
reconnaissance by aerial photography and launched by U.S. military 
bodies, began to penetrate into the airspace of the peopled Democra- 
cies and the U.S.S.R." 33 In 1960, the Soviets became aware of 
reconnaissance carried out via overflights of the U-2 type aircraft, 
and from over the high seas — as in the case of the RB-47 — and in 
both instances complained of the "real or alleged 'violation' of its 
'frontiers' or airspace by American aircraft." 34 

The observational capabilities of aircraft and spacecraft when 
directly over a state or when adjacent thereto are unquestionably 
extensive. At the present time, the observational capabilities of space 
vehicles are so extensive and their observational techniques are so 
versatile that they can be very efficient, even though at the time their 
observational activity is conducted they need not be either over a state 

32 Ibid. 

33 Kislov and Krylov, "State Sovereignty in Airspace," International Affairs 
(Moscow) 34 (March 1956) ; Legal Problems of Space Exploration, A Sym- 
posium 1037. 

34 Lissitzyn, "Some Legal Implications of the U-2 and RB-47 Incidents," 
56 A.J.I.L. 136 (1962). See, Wright, "Legal Aspects of the U-2 Incident," 54 
A.J.I.L. 836 (1960). 



279 

or its territorial waters. In fact, the vehicle may be a long distance 
both horizontally and laterally from the observed area. Mere "over- 
ness" or physical proximity does not impede successful observational 
results. 

These facts bring into focus both the extent of national sovereignty 
and the extent of national control over superjacent areas, e.g., the 
airspace and outer space. Lissitzyn and Crane have examined the 
views of Soviet lawyers, and have independently arrived at the view 
that the Soviets recognize upper limits to national sovereignty. Thus, 
Lissitzyn has written that "Since the launching of Sputnik I in 
October, 1957, Soviet writers have been virtually unanimous in ex- 
pressing the view that state sovereignty has or should have an up- 
ward limit and should not extend infinitely into space, but have not 
suggested any specific boundary between airspace which is under na- 
tional sovereignty and outer space which is not." 35 The force of 
U.N. General Assembly Resolution 1721 (XVI) has also been to pre- 
vent sovereignty from applying in outer space. However, the free- 
dom of peaceful use and exploration of outer space need not be 
unlimited. Thus, the Soviet contention that orbiting observational 
satellites in outer space constitutes a form of "espionage" has served 
as a means to ascertain that if this assertion is accepted, one form 
of control over the free and peaceful uses of outer space is created. 
In short, the problem is to determine whether a specific type of ob- 
servation by satellite is unreasonable, illegal, and subject to some 
form of either national or international control. 

It should be noted that the Soviet proposed draft declaration of 
basic principles, which constitutes their official claim regarding "es- 
pionage," provides that "9. The use of artificial satellites for the 
collection of intelligence information in the territory of a foreign 
State is incompatible with the objectives of mankind in its conquest 
of outer space." 36 Interpreted literally, intelligence information 

35 Lissitzyn, supra note 34, at 137. Crane "Communist Viewpoints," Legal 
Problems of Space Exploration, A Symposium 1012-1014. 

36 U.N. Doc. A/AC.105/12, Annex 1, 2. The Soviets have displayed no will- 
ingness to depart from this viewpoint. U.N. Doc. A/AC.105/PV.20, 46 (Septem- 
ber 1963). The same position has been advanced in the Soviet Draft Interna- 
tional Agreement on the Rescue of Astronauts and Spaceships Making 
Emergency Landings. Thus, in the second paragraph of Article 7 it has been 
proposed that "Space vehicles aboard which devices have been discovered for 
the collection of intelligence information in the territory of another State shall 
not be returned." U.N. Doc. A/AC.105/12, Annex 1, 4. This would create an 
exception to the prescribed duty to return, provided other conditions had been 
met. 

791-405—66 19 



280 

would not seem to include a great deal of the observational activity 
carried on by artificial satellites, and, by way of random example, 
could hardly be construed to deal with such meteorological informa- 
tion gathering as relates to cloud cover, the amount of energy re- 
ceived on earth and in space directly from the sun, the amounts of 
energy reflected by clouds, ice, snow, and other bright objects, and 
the amount of energy radiated by earth. 37 Nor could it be thought 
to inhibit the gathering of navigational and geodetic information. 
The list of items of information which it is, and would be, reasonable 
for satellites to collect might be extended indefinitely. 

The Soviet view that the collection of intelligence information in 
the territory of a state should be considered to be "espionage" is 
based on the concept of security. The Soviet effort to arrive at specific 
instances of control over the free use of outer space for peaceful 
purposes has been clearly demonstrated by Zhukov. He has stated 
that "each state has a right to use outer space at its own discretion, 
but without causing harm or damage to other states." 38 It was his 
further view that the United States has a national policy and plans 
to engage in "space espionage directed against the security of the 
U.S.S.R. and the other Socialist countries [and this policy and plans 
are] incompatible with the generally recognized principles and rules 
of international law, designed to protect the security of states against 
encroachments from outside including outer space. In the past, con- 
siderations of state security have been of decisive importance in 
determining the airspace regime. Today the same considerations 
must underline the regime of outer space." 39 

The Soviets have identified the Midas, Samos, and Tiros type satel- 
lites as those, among others, that were intended to reconnoiter their 
rocket and missile bases. 40 Some Soviet writers have contended that 



37 These were mentioned by Dr. Richard W. Porter, Chairman, USNC Tech- 
nical Panel on the IGY, in his testimony in 1958 to a subcommittee of the 
House Committee on Appropriations. The peaceful and scientific nature of 
such information gathering seems obvious. Review of the First Eleven Months 
of the International Geophysical Year, 85th Cong., 2nd Sess., 146 (1958). 

38 Zhukov, "Space Espionage Plans and International Law," International 
Affairs (Moscow) 53-57 (October 1960) ; Legal Problems of Space Explora- 
tion, A Symposium 1099. 

39 Ibid., 1098-1099. Korovin has asserted that espionage in peacetime "is an 
act of political aggression." "Peaceful Co-operation in Space," 1962 Interna- 
tional Affairs (Moscow) 61 (March 1962) ; Compare, Zhukov, "Practical Prob- 
lems of Space Law," International Affairs (Moscow) 26 (May 1963). 

40 Kucherov, "Soviet Attitude Toward International Law and Outer Space," 
Chapter VI of Soviet Space Programs: Organization Plans, Goals, and Inter- 
national Implications, U.S. Senate Committee on Aeronautical and Space Sci- 
ences 208 (1962) . Crane, supra note 35, at 1014-1015. 



281 

satellite "espionage" was being conducted by the United States in 
order to facilitate an aggressive, and presumably, surprise attack 
against the Soviet Union. Thus, the charge has been made that "The 
United States and other imperialist Powers want to militarize outer 
space, seeking to turn it into a new theatre of hostilities." 41 

Traditional international law has never considered "espionage" to 
be unlawful. It has, in fact, endeavored to regularize the treatment 
of captured spies. It is true, however, that espionage as defined in 
the laws of states constitutes a crime under much municipal legisla- 
tion. Such laws have taken into account the individual's location 
when engaged in espionage activities as well as the type of activity 
in which the individual is engaged. At this time these laws regard 
espionage as an intentional and prohibited act of an individual. 
Whether information gathering by a machine, particularly an un- 
manned machine, constitutes a crime pursuant to most municipal 
laws as presently written, is doubtful. On the other hand, Goedhuis 
has taken the view that the invasion of a state's territorial airspace 
by an information gathering satellite could properly result in sum- 
mary action. He has suggested that if the space vehicle of one state, 
while in orbit, were to pass through the airspace of another state — • 
and this, of course, assumes that there is agreement as to the bound- 
ary between airspace and outer space — "it is clear that a State has a 
right to take affirmative measures against these satellites for an 
infringement of its sovereignty as well as for a breach of municipal 
law concerning espionage." 42 This view, perhaps, assumes too much. 
First, if the space vehicle's function is a peaceful one — and it has 
never been thought that during a nonwarlike situation an informa- 
tion-gathering function of a maritime vessel beyond the territorial 
seas was other than a peaceful one — then a subjacent state would not 
be permitted to extend its municipal law to such a function when 
the space vehicle was in outer space above the nation's territory. 
Second, while it is clear that sovereignty does not determine the 
areas in which a state may exercise defensive rights, Goedhuis' view 
assumes that the information gathering function of the spacecraft is 
unreasonable in that it is likely to cause serious harm to the national 
well-being of the subjacent state. Another reason for his view may 
be that at the present time there does not appear to be any effective 
way to determine whether the function of the transiting satellite is 



41 "Forum : Space Exploration and International Relations," International 
Affairs (Moscow) 57-63 (June 1961) ; Soviet Space Programs, op. cit., 306. 

42 Goedhuis, "Some Trends in the Political and Legal Thinking on the Con- 
quest of Space," 9 Netherland International Law Review 124 (1962). 



282 

dangerous or not to the security of the subjacent state. Third, if it 
is true that the function of the satellite while in outer space is a 
peaceful one, the activity by the satellite in the airspace of the sub- 
jacent state while temporarily transiting in the process of launch or 
landing must also be considered to be peaceful. Finally, Goedhuis 
assumes that municipal laws have clearly defined information gather- 
ing, by an unmanned space vehicle while in the airspace, to be munic- 
ipal espionage. This may be if the statute so provides. Interna- 
tional law, however, is not the product of the policy of a single state, 
and the fact that the Soviet expressions concerning "espionage" in 
space do not constitute international law has been noted by one dis- 
tinguished Soviet international lawyer. Koretsky, at the 49th session 
of the International Law Association, charged that the use of in- 
formation gathering satellites was violative of the Charter of the 
United Nations, but that the use of the Discoverer type satellite was 
"taking advantage of the lack of regulations covering what satel- 
lites may or may not do in orbit." 43 

In international law, espionage in the traditional sense consists of 
wartime conduct. Wartime espionage is governed by Articles 29-31 of 
the Kegulations of The Hague 1907 Convention IV. 44 Article 29 
defines a spy as a person who engages in spying, who acts clandes- 
tinely or on false pretenses, who obtains or endeavors to obtain in- 
formation, and who performs the prohibited conduct in the zone of 
operations of a belligerent with the intention of communicating it to 
the hostile party. The 1907 Regulations place emphasis on the fact 
that such conduct is individual conduct, and provide, for example, in 
Article 30, that a spy shall not be punished without trial. 

A recent analysis of the law of espionage states "The act of spy- 
ing is not in violation of international law. Punishment of captured 
spies is permitted as an act of self -protection, the law equally per- 
mitting the one to send spies, the other to punish them if captured." 45 

Spying in peacetime has not been defined by treaty. A recent 
United States Army publication states with regard to the conduct 
of espionage under such condition that it "is not considered wrong 
morally, politically, or legally * * *" 46 In such circumstances cap- 
tured spies are punished under appropriate national laws because 
"The sole norm in peacetime is the municipal law of each state in the 

43 Ibid., note 17. The quoted words are those of Goedhuis. 

44 36 Stat. 2277. 

45 II Department of the Army Pam 27-161-2, International Law 58 (1962). 
Compare, II Lauterpacht-Oppenheim, International Law 422 (7th ed. 1952) ; 
FM 27-10, Law of Land Warfare par 77 (1956). 

46 Ibid., 61. Compare, I Lauterpacht-Oppenheim, International Laic 859, 862 
(8th ed. 1955). 



283 

absence of a commonly agreed international rule similar to the IV 
Hague Convention. If the act alleged violates the municipal law of 
the country in question, that is sufficient for the trial to proceed." 47 

The effort by the Soviet Union at the United Nations to make in- 
telligence gathering in a nation by satellite a violation of interna- 
tional law seeks to modify existing international law. In this instance 
the Soviet Union appears to be following the precept that informa- 
tion gathering by satellites is permitted until it is prohibited. But, 
by their protests they have given the impression that such informa- 
tion gathering is not an acceptable peaceful, and hence reasonable, 
use of outer space. Much of their difficulty has arisen from their 
refusal to recognize that United States observational activities, as 
well as their own, are exceedingly varied. Furthermore, they have 
not been willing to admit that the purpose of the United States in 
gathering Soviet military information has been to obtain facts of 
prospective Soviet military activity so that defensive planning may 
be undertaken rather than, as the Soviets have perhaps believed, for 
engaging in aggressive uses. 

In view of the importance of the problem, a short resume of Soviet 
efforts to put intelligence gathering activities into the category of 
unreasonable and even nonpeaceful uses will be attempted. Their 
efforts to employ the language of "espionage" in order to achieve 
guarantees against "an invasion of privacy" will have substantial 
impact upon the future of international cooperation in outer space. 

As previously pointed out, there is a general consensus that space- 
craft ought to be returned to the launching state when it comes down 
in the territory of another or on the high seas. This view was chal- 
lenged by the Soviet delegate to the First Committee in December 
1962, when he suggested that an exception "would be made in the 
case of a vehicle aboard which devices have been found for the col- 
lection of intelligence data from the territory of another States 
(sic)." 48 It was argued that such an exception should be based on 
the view that such gathering of information was incompatible with 
the Charter and involved the "violation of the sovereignty of another 
State. It is indubitable that espionage is such a violation, even if 
it is effected from space." 49 

47 IhkL, note 88. at 61. The espionage statute of the United States is 18 
U.8.C., 793 and 794. It applies to both wartime and peacetime situations, seems 
to apply only to individuals, and makes illegal the obtaining of information and 
the passing of it on to a foreign power. The place in which or from which 
the information is obtained is not limited in the statute. 

48 U.N. Doc. A/0.1/PV.1289, 56. See Annex 2, infra, pp. 443-446. 
4 » Ibid . 



284 

The division between the United States and the Soviet Union on 
this point may best be reflected by quoting from Senator Gore's 
speech to the Committee and the reply of Mr. Morozov. Senator Gore 
stated that one of the consequences of the hybrid capabilities of space 
vehicles was that : 

Any nation may use space satellites for such purposes as obser- 
vation and information-gathering. Observation from space is 
consistent with international law, just as is observation from the 
high seas. Moreover, it serves many useful purposes. Observa- 
tion satellites can measure solar and stellar radiation and observe 
the atmosphere and surfaces of other planets. They can observe 
cloud formations and weather conditions. They can observe the 
earth and add to the science of geodesy. Observation satellites 
obviously have military as well as scientific applications. But 
this can provide no basis for objection to observation satellites. 

With malice toward none, science has decreed that we are to 
live in an increasingly open world, like it or not, and openness, 
in the view of my Government, can only serve the cause of peace. 
The United States, like every other nation represented here in 
this Committee, is determined to pursue every non-aggressive 
step which it considers necessary to protect its national security 
and the security of its friends and allies, until that day arrives 
when such precautions are no longer necessary. 50 
Mr. Morozov introduced his remarks by stating that the foregoing 
constituted an attempt at theoretical justification of illegal observa- 
tion and information gathering activities. He said: 

We cannot agree with the claim that all observation from 
space, including observation for the purpose of collecting intel- 
ligence data, is in conformity with international law — a conclu- 
sion which could be drawn from the statement made this morn- 
ing by the representative of the United States. Such observation 
is just as wrong as when intelligence data are obtained by other 
means, such as by photographs made from the air. The object to 
which such illegal surveillance is directed constitutes a secret 
guarded by a sovereign State, and regardless of the means by 
which such an operation is carried out, it is in all cases an in- 
trusion into something guarded by a sovereign State in conform- 
ity with its sovereign prerogative. Thus such observations are in 
violation of the sovereignty of States, and no analogy exists 
here with principles applying to the open seas. If it were merely 

™ Ibid., 13-15. 



285 

a case of observing what happens on the high seas, one could of 
course accept this analogy; but when it is a case of observation 
on the high seas for purposes of collecting intelligence informa- 
tion, then we are dealing with an intrusion into the sovereign 
rights of States, an attempt to penetrate into that which a State 
tries to protect on its territory. And I should add to this the 
further fact that, for technical reasons, one cannot find out by 
observation on the high seas what one can find out from outer 
space. 

Thus this analogy used by the representative of the United 
States can be considered neither from the factual nor from the 
legal angle as valid and applying to the situation we are at pres- 
ent discussing. For these reasons we consider that the activities 
involved are incompatible with the provisions of the United Na- 
tions Charter. Such gathering of intelligence data through the 
use of space vehicles is in violation of the sovereign rights of 
States, and if outer space is to be used in peaceful cooperation, 
such operations cannot be regarded as legal or in conformity 
with international law, and hence there could be no question of 
the possibility of defending such a position on the basis of inter- 
national law and generally recognized principles. 51 
The Soviet representative did not provide any information concern- 
ing the content of "intelligence data," and the subsequent discussions 
have not achieved specificity as to such content. However, the sub- 
ject has received no little attention in the legal subcommittee of the 
Committee on the Peaceful Uses of Outer Space, April-May 1963, 
and again during September 1963. 52 

The Soviet Union, as the proponent of the view that the gathering 
of intelligence data in a state by means of a transiting satellite is 
"espionage" and therefore violative of international law, has assumed 
the affirmative duty of proving these claims to be both valid and 
acceptable. In seeking to prove its point it has raised the following 
arguments. As noted above, it has been asserted that it is wrong to 
engage in the gathering of intelligence since it is allegedly an in- 
vasion of sovereignty, of the UN Charter, international law, and the 
concept of peaceful cooperation. It is the Soviet view that since it 
is wrong to gather information by way of aerial photographs made 
by superjacent aircraft, it is equally wrong to do so from outer space. 

51 Ibid., 57. The Soviet argument that the use by the United States of in- 
formation gathering satellites is illegal has been summarized by Crane in 
"Soviet Attitude Toward International Space Law," 56 AJ.I.L. 704r-706 (1962). 

52 U.N. Docs. A/AC.105/PV.20, 21, 22, 23. 



286 

Accordingly, neither the altitudes nor the means employed may be 
considered as significant distinguishing differences. 

Nonetheless, the Soviets do not admit that they are limited in their 
intelligence gathering activities conducted on the high seas or from 
outer space. The absence of national sovereignty over the high seas 
is given as their reason for the lawfulness of such conduct. Such 
reasoning presumably would also apply to intelligence gathering 
from the airspace above the high seas and outer space above the 
same air-sea space environment concerning events in such areas. But 
in the April-May 1963, U.N. debates, the Soviet delegate rejected, 
as lacking in factual and legal validity, an analogy between intel- 
ligence gathering activities within a nation from the high seas and 
the same activities conducted from outer space. Apparently he drew 
some significance from the fact that observational equipment, tech- 
nically capable of obtaining information on or from the high seas, 
need not serve effectively when used in outer space, and also that the 
latter dimension was a more favorable observation position. 

The Soviet delegate told the legal subcommittee on April 17, 1963, 
that the altitude from which "espionage" occurred — apparently the 
same meaning has been attached by the Soviets to this term as that 
of collecting intelligence information — did not serve to distinguish 
such activities from comparable ones engaged in at lower altitudes. 
He again asserted that when such activity was conducted in the ter- 
ritory of a sovereign state, it was incompatible with the objectives of 
mankind in the conquest of outer space and with the theory and 
practice of international law. He again argued that since such con- 
duct had been prohibited by national laws, the same principle 
"should" apply to espionage in outer space. 53 He also urged that the 
1907 Hague and the 1944 Chicago Conventions had relevancy, and 
said that "Provisions of the Hague Convention of 1907 respecting 
the Laws and Customs of War on Land outlawed spying, and satel- 
lites used for the collection of intelligence material would be spies. 
Article 36 of the Convention on International Civil Aviation signed 
at Chicago in 1944 stated 'Each contracting State may prohibit or 
regulate the use of photographic apparatus in aircraft over its ter- 
ritory'." 54 The Chicago Convention, however, has no applicability 
to spacecraft in space. 

53 U.N. Doc. A/AC.105/C.2/SR.17, 7. 

54 Ibid. Haley appears to be in error when he concludes that it is "accepted 
international law" that "no man-made object or vehicle may pass over it 
["every sovereign nation"] at any height if such passage is for the purpose of 
acquiring military intelligence." Haley, supra note 21, at 91. Compare, Mc- 
Dougal, Lasswell and Vlasic, Law and Public Order in Space 491-496 (1963). 



287 

In contending that the substance of municipal law provisions deal- 
ing with espionage "should" be applied to conduct in outer space, 
the Soviet representative, by implication, admitted that the rule had 
not been incorporated into international law. In asserting that "es- 
pionage" in outer space was incompatible with the practice of inter- 
national law, one may perhaps conclude that the Soviet representa- 
tive was acknowledging that as of that time no such conduct had 
been engaged in, although, as noted above, many private Soviet 
writers have contended that certain types of United States satellites 
were engaged in "unlawful" information gathering activities. Fi- 
nally, the claim by the Soviets concerning the applicability of the 
1944 Chicago Convention was made in the face of the fact that the 
Soviets have never become a party to that agreement. Furthermore, 
they have never stated that they were not engaged in information 
gathering activities in other countries. In fact Premier Khrushchev 
acknowledged in May 1964, that Soviet satellites had photographed 
military installations at high altitudes. 

On April 26, 1963, the Soviet delegate again made reference to 
the problem of intelligence gathering by means of satellite. On this 
occasion, emphasis was placed on the contention that such conduct 
was contrary to the interest of friendly international relations and 
the immateriality of the altitude from which such observation took 
place was again asserted. Additionally, the analogy of freedom of 
observation on the high seas was again rejected, and the Soviet dele- 
gate pointed out that there were in fact numerous limitations upon 
the independence of national ships, namely, nations had established 
"either temporarily or permanently — warning, danger, restricted or 
prohibited areas for numerous purposes." 55 

It was the Soviet view that the acceptance of a rule respecting the 
gathering of intelligence information in a state was "simply a con- 
firmation and extension of an accepted principle of international 
law." 56 The unwillingness of other states, it was charged, to accept 
such a rule was "evidence of a desire * * * to reserve the possibility 
of using outer space for espionage purposes." 57 

As has been noted, the Soviet draft agreement on emergency land- 
ings also suggested that the collection of intelligence information in 
the territory of a foreign state was wrong and in conflict with the 
objectives of mankind in the conquest of outer space. 58 In comment- 



55 U.N. Doc. A/AC.105/C.2/SR.22, 5. 
55 Ibid. 

57 Ibid. 

58 Supra, pp. 271-286. 



288 

ing on this proposal, the Soviet delegate told the subcommittee on 
April 30, 1963, that "it could not be seriously supposed that a State 
finding a spy satellite with equipment containing photographs of 
strategic objects on its territory would return that satellite untouched 
to the launching State, since the return of the satellite would ad- 
versely affect the security of the State in which it had landed." 59 

Before the subcommittee concluded its April-May 1963, session, 
the delegates endeavored to summarize the achievements of the meet- 
ings. The Soviet delegate protested that the United States had 
declined even to discuss the Soviet contention dealing with the 
gathering of intelligence in a state by use of an artificial satellite. It 
was acknowledged, however, that there had been numerous protests 
against the Soviet proposals, and notice was served by the Soviets 
that they had not given up their support of the wholly novel view of 
this phase of international law. It was stated that "All attempts to 
reconcile the collection of intelligence information by artificial satel- 
lites with the principles of international law were completely un- 
founded. Espionage in any environment was inadmissible and it 
was prohibited by every system of national law." 60 However, by 
September 1963, the Soviet Union's delegate to the Committee on 
The Peaceful Uses of Outer Space was content in a long speech 
merely to say that his country attached "considerable importance to 
efforts finally to achieve agreement on the question of the impermis- 
sibility of the use of satellites for collecting intelligence informa- 
tion." 61 It should also be noted that General Assembly Resolution 
1962 (XVIII) fails to take any account of the Soviet point of view. 

The Soviet position did receive limited support in the April-May 
1963, deliberations of the subcommittee. Thus, some of the states 
composing the Communist bloc, such as Romania, 62 Hungary, 63 Bul- 
garia, 64 and Albania, 65 considered the Soviet proposals to be either 
humanitarian or based on sovereign rights and designed to eliminate 
conditions inimical to the cause of peace. All, as did the Soviet 
Union, argued that such proposals should be incorporated into the 



69 U.N. Doc. A/AC.105/C.2/SR.25, 14. 

60 U.N. Doc. A/AC.105/C.2/SR.28, 13. 

61 U.N. Doc. A/AC.105/PV.20, 46. 

62 U.N. Doc. A/AC.105/C.2/SR.18, 10. 

68 U.N. Doc. A/AC.105/C.2/SR.21, 4. "Espionage, which was contrary to the 
principles of international law and was generally prohibited by national legisla- 
tion, should be specifically prohibited in outer space and the possibility of any 
violation should be precluded." 

64 U.N. Doc. A/AC.105/C.2/SR.23, 8. 

86 U.N. Doc. A/AC.105/C.2/SR.24, 4. 



289 

body of international law, and that this might be accomplished by the 
acceptance of the Soviet drafts. None, however, made any effort to 
offer any detail as to the meaning of "intelligence information." 

During the April-May 1963, meetings of the subcommittee, the 
United States made no effort to debate the Soviet proposal. It pre- 
ferred to engage in the actual practices followed from 1957 to the 
present and the position of the United States is well known. In an 
address delivered on April 13, 1963, Mr. Meeker, Deputy Legal Ad- 
viser, Department of State, made it clear that observation from space 
to space, airspace, and to the earth was governed by the Charter of 
the United Nations, by international law, and, in particular, by 
Eesolution 1721 (XVI) which commended to the countries of the 
world the principle that outer space and celestial bodies are free for 
lawful exploration and use. It was his general proposition that 
"observation of the earth from outer space is a legitimate and permis- 
sible activity in the peaceful exploration and use of space. Observa- 
tion neither works nor threatens injury or damage to any persons or 
things on earth." 66 He therefore concluded that "observation from 
space comes within the freedom which the General Assembly has 
recognized * * *" in Eesolution 1721 A 1 (b). 67 

After pointing to the hybrid uses of space vehicles, Meeker noted 
their importance in the promotion of international security. He 
stated that: 

Another important potential use of observation in space is the 
possibility of acquiring information about military preparations, 
and thus help in maintaining international peace and security. 
One of the great problems in today's world is the uncertainty 
generated by the secret development, testing, and deployment of 
national armaments and by the lack of information on military 
preparations within closed societies. If in fact a nation is not 
preparing a surprise attack, observations from space could help 
us to know this and thereby increase confidence in world security 
which might otherwise be subject to added and unnecessary 
doubts. 68 

On this basis he arrived at an important conclusion, and related 
it to the international law of outer space. He stated : 

The fact that observation satellites clearly have military as 
well as scientific and commercial applications can provide no 

66 Meeker, "Observation in Space," Department of State Press Release No. 
191 (Revised), April 12, 1963, 2. Compare, Gardner, "Cooperation in Outer 
Space," 41 Foreign Affairs 345, 347 (1963). 

67 Ibid., 2. 

68 Ibid., 5. 



290 

basis for objection to observation satellites. International law 
imposes no restrictions on observation from outside the limits of 
national jurisdiction. Observation from outer space, like obser- 
vation from the high seas or from air space above the high seas, 
is consistent with international law. 69 

On May 3, 1963, Mr. Meeker summarized before the legal subcom- 
mittee the points on which a consensus had been achieved. Specific- 
ally, it had been understood that there existed "freedom of outer 
space for exploration and use by all States, on a basis of equality in 
accordance with international law; on the immunity of celestial 
bodies from national appropriation ; on the applicability of interna- 
tional law, including the United Nations Charter, to relations among 
States in outer space; on retention by the launching authority of 
jurisdiction over the ownership of space vehicles; on assistance to 
astronauts in distress and return of space vehicles and their person- 
nel, and on liability for injury or damage caused by space vehicle 
accidents." 70 It is noteworthy that no direct reference was made to 
the Soviet proposals relating to the gathering of intelligence data. 

The Soviet proposals have also been rejected by other states par- 
ticipating in the deliberations of the legal subcommittee. Thus, the 
Italian delegate on April 22, 1963, held that the Soviet proposals fell 
under the heading of "observation" rather than "that of espionage. 
[It was his view that] Observation for peaceful and indeed deserving 
purposes had heretofore been considered to be consistent with inter- 
national law, as in the practice of observation from the high seas. 
If the concept of freedom of the high seas was to be extended to 
outer space, precedent would not support the exclusion of such activ- 
ity in outer space." 71 In the same context the Canadian delegate re- 
jected the Soviet contention that the same national rights existed 
with respect to observational conduct in outer space as are permitted 
in the airspace by reason of Article 36 of the Chicago Convention. 72 
He also supported the general analogy of the law of the sea as ap- 
plicable to outer space. Other delegates also noted and expressed 
disagreement with the Soviet proposal. 73 

69 Ibid., 6. 

70 U.N. Doc. A/AC.105/C.2/SR.28, 9. 

71 U.N. Doc. A/AC.105/C.2/SR.20, 4. 

72 U.N. Doc. A/AC.105/C.2/SR.21, 7. Article 36 of the Chicago Convention 
provides "Each contracting State may prohibit or regulate the use of photo- 
graphic apparatus in aircraft over its territory." Stat. 1180. The United King- 
dom's delegate also rejected the applicability of the article. Z7.2V. Doc. A/AC.105/ 
C.2/SR.24, 12. 

78 U.N. Doc. A/AC.105/C.2/SR.28, 5. Compare, Williams, supra note 20, at 
155. 



291 

The Soviet position on the gathering of information from outer 
space has demonstrated a unique inconsistency. There has been a 
consistent attack on the propriety of United States information 
gathering satellites while at the same time there has been Soviet sup- 
port for the legality of their own space flights. 74 More important, 
however, has been a nonofficial Soviet charge that such United States 
space flights were unlawful as contrary to Resolution 1721 (XVI). 
The United States has construed the resolution to mean that outer 
space is free for peaceful use and exploration, and that all beneficial 
uses other than activities constituting force or threats of force, i.e., 
aggression, against another state or states in violation of interna- 
tional law or the Charter of the United Nations, were legally per- 
missible. As to this position one Soviet writer has alleged : "In con- 
travention of the U.N. General Assembly's resolution of December 
20, 1961, on the extension of international law to outer space, which 
is to be used only for the benefit of mankind and in the interests of 
states, the U.S.A. has stubbornly continued to launch its spies-in-the- 
sky, secret satellites, military satellites and other satellites carrying 
secret testing devices." 75 Thus, the Soviet position has been made 
clear. It is their view that such observational techniques, like those 
pursued by both unmanned balloons and manned aircraft superjacent 
to and within close proximity to Soviet land areas, are inherently 
illegal. However, while mere unauthorized entry by balloons and air- 
craft into airspace has been deemed to be a violation of the sover- 
eignty of the subjacent state, 76 the Soviets have urged that all 
intelligence gathering satellites were illegal — being engaged in "es- 
pionage" — and would therefore be considered by the Soviets as en- 
gaged in "aggressive conduct." 77 

The Soviets have not made clear their reason for attaching special 
importance to the collection of intelligence data by means of artificial 
satellites, although their objection appears to be based on the wide 
coverage afforded by satellites. However, intelligence information 
may be acquired by a number of other means, including radio signals, 

74 Lipson, "An Argument on the Legality of Reconnaissance Satellites," 
1961 Proceedings of the American Society of International Law 174 (1961). 

75 Korovin, "International Law Through the Pentagon's Prism," International 
Affairs (Moscow) 5 (December 1962). Compare, Zhukov, "Space Espionage 
Plans and International Law," International Affairs (Moscow) 53-77 (October 
1960; Legal Proolems of Space Exploration, A Symposium 1095-1101; Zhukov, 
"Practical Problems of Space Law," International Affairs (Moscow) 27 (May 
1963). 

76 Lissitzyn, supra note 34, at 137. 

77 Zhukov, "Space Espionage," op cit., 1096-1098. Compare, Bloomfield, 
Outer Space 173 (1962). 



292 

radar, and other processes when mounted on naval vessels, balloons, 
rockets and aircraft. Thus, the principal objection to satellites seems 
to be that they are highly efficient in accomplishing their mission, 
rather than objection to their location or the fact that they may be 
manned or unmanned. Their "aggressive" nature, according to the 
Soviets, has been based principally upon their utility and not at all 
upon any capability of engaging in overt or forceful conduct. The 
charge of "espionage" has suggested that Soviet planning was unable 
to accept, on the basis of mutuality, the challenge of equal observa- 
tional opportunity. 78 

It would appear that the Free World for policy considerations is 
obliged to reject the claim that intelligence gathering satellites are 
engaged in aggressive conduct. To accept this contention would con- 
stitute a capitulation to the principles and assumptions of a closed 
society, and might ultimately lead to other restrictions on the full 
and free use of outer space for peaceful 5 i.e., nonaggressive and bene- 
ficial, purposes. 

The Soviet claim that the collection of intelligence information in 
the territory of a sovereign state constitutes "espionage" and that 
such "espionage" violates the principles of international law has no 
legal foundation. International law, both customary and conven- 
tional, makes no provision for espionage in time of peace. Articles 
29-31 of the Regulations of the Fourth Hague Convention, 1907, deal 
with espionage in time of war. It is clear that the prohibited con- 
duct under those circumstances is that of an individual who is en- 
titled to a trial. This would seem to exclude unmanned satellites. The 
activity must be clandestine, but here the United States has given full 
advance publicity to its manned space activities, has made reports to 
the United Nations of its manned and unmanned launches, and has 
provided extensive official news releases so that the world public has 
been made aware of such activities — so much so that Soviet writers 
have been able to discuss these successes in great detail. 

Espionage in wartime, if not carried out in a clandestine manner, 
to result in punishment, must be undertaken pursuant to false pre- 

78 Deutsch, "A World of Moderate Rivals," in Goldsen, ed., International 
Political Implications of Activities in Outer Space 181 (1960). He has sug- 
gested that under conditions of moderate rivalry, space powers may exercise 
some restraint in space activities, including the toleration of overflights in an 
area designated as "reconnaissance space." At such a distance a satellite 
would be able to obtain "'relevant military information about objects and 
activities on the ground." Where the rivalry has gone beyond this condition 
the opposing states may be induced to "try to shoot down" objectional satel- 
lites. Falk, "Space Espionage and World Order," in Stanger, ed., Essays on 
Espionage and International Law 55 (1962). 



293 

tenses. No record has been made of a satellite purporting to be 
something else. The uniformed wartime occupant, if any — like an 
aviator or any other military person — (assuming he were to be 
charged with spying) would be entitled to the protection of the 
Regulations attached to the Fourth Hague Convention, 1907. 

The fact that states have enacted municipal laws prohibiting con- 
duct which has been defined unilaterally as espionage, even when the 
defined conduct is engaged in beyond jurisdiction of the subject state, 
need not establish international standards, and even less, interna- 
tional law. Surveillance at approximately 68,000 feet, as in the case 
of the U-2, has been described by the Secretary of State of the 
United States as "aerial surveillance by unarmed civilian aircraft." 79 
It has been generally conceded that such observation was not espio- 
nage in the conventional international sense. 80 Since peacetime in- 
ternational law is remarkably devoid of content relating to conduct, 
which if engaged in during wartime might legitimately have been 
regarded as espionage, 81 the Soviet response to the U-2 and RB-47 
flights was to assert that such conduct was aggressive. It was the 
Soviet view that the conduct was a violation of its sovereign frontiers 
of airspace. 82 The Security Council refused to condemn the U-2 
flight as aggressive by a vote of 9-2. 83 Although the Soviet Union 
shot down the U-2, it did not claim or admit the right to shoot down 
the RB-47 (United States aircraft), when "over the high seas, even 
if it is a military aircraft which may be engaged in military recon- 
naissance." 84 

Although international law has not interdicted the collection of 
intelligence data in a given country when accomplished from the 
high seas and from the airspace superjacent to the high seas, a state 
— on security grounds — can punish the invasion of its airspace. Sanc- 
tions have been imposed whether the infraction has been accom- 
plished intentionally to obtain intelligence data or has been quite 
accidental, and not involving the acquisition of data. 

It has been sometimes contended that the gathering of intelligence 
data by satellite violates the basic principle of international law 

79 Beresford, "Surveillance Aircraft and Satellites : A Problem of Interna- 
tional Law," 27 The Journal of Air Law and Commerce 113 (1961). 

80 JUd. 

81 Cohen, "Espionage and Immunity — Some Recent Problems and Develop- 
ments," 25 Brit. Yb. InVl L. 404 (1948) ; Cohen- Jonathan and Kovar, "L'Espio- 
nage en Temps de Paix," 1960 Annuaire Francais De Droit International 238- 
255 (1961). 

82 Lissitzyn, supra note 34, at 136, 138-140. 

8 3 V.N. Doc. S/4384, S/4385 and S/4406 (1960). 

84 Lissitzyn, op. cit. f 140. 



294 

whereby each sovereign state must respect the territorial integrity 
and political independence of others. Thus, it has been suggested 
that espionage in peacetime is a form of intervention which cannot 
be legally justified "on the ground that it is carried on as part of a 
crusade against communism." 85 The claim of a state to engage in 
observational activities may be based on the fundamental doctrine 
of self-defense or on its right to enjoy the condition of international 
peace and security. Since the world community possesses a decentral- 
ized decisional process, it is clear that such principles may be opposed 
by Soviet claims based either on the duty of peaceful intercourse^ or 
nonintervention in internal affairs, or on their view of self-defense, 
peace, and security. 

International law does not interdict all activities of a state which 
are not appreciated by other states. It prohibits only such conduct 
as has been agreed to be unlawful — either through custom, general 
principles of law, or through express consent. Until custom or ex- 
press agreement has been reached, holding nonaggressive observa- 
tional activities to be unreasonable, it will be permissible for states to 
employ information gathering satellites. 

It has been noted that the Soviet Union and the United States 
have taken opposing views on the legality under international law 
of one function of observational satellites. However, both have fash- 
ioned their approach to this subject by reliance on, and through, 
seeking the benefit of the general principles of international law, the 
Charter of the U.N., and in particular General Assembly Resolution 
1721 (XVI). Both have taken into account the concepts of sover- 
eignty, the right to international peace and security, and self-de- 
fense. The Soviets have made particular reference to such concepts 
as territorial integrity, political independence, friendly international 
relations, and peaceful intercourse. They have also specifically noted 
the needs of peaceful cooperation and the humanitarian objectives 
of mankind. It has been suggested, in support of the Soviet position, 
that observational activities may constitute a form of intervention 
violative of an alleged right of privacy. The Soviets have charged 
that "espionage," at least if engaged in by means of an artificial satel- 
lite, is inherently wrong, and have sought, without success, to sup- 
port their views through reference to the Hague and Chicago Con- 

85 Wright, "Espionage and the Doctrine of Non-intervention in Internal 
Affairs,"' in Stanger, ed., Essays on Espionage and International Law 23 
(1962). Compare, Baxter, "So-Called 'Underprivileged Belligerency' — Spies, 
Guerrillas, & Sabateurs," 28 Brit. Yd. Int'l L. 329 (1951), where it is stated 
that espionage "is of doubtful compatibility with the requirements of law 
governing peaceful intercourse of states." 



295 

ventions. They have also pointed to the fact that a state in its 
national legislation may prohibit the municipal crime of espionage. 

The United States, on the other hand, has interpreted General 
Assembly Resolution 1721 as meaning that outer space is open to all 
for peaceful exploration and use on the basis of equality. It has 
pointed to the reasonableness of its observational activities and to 
the inconsistencies of the Soviet claim when compared with the con- 
duct of the latter. The United States has relied on the analogy of 
the high seas where freedom of observation is accepted. It has noted 
that with the development of a customary law for outer space, state 
practice has generally come to regard observational activities as 
peaceful, and that there have been no national protests on a formal 
state- to-state basis against a specific instance of space observation. 
The United States has also been able to rely on the fact that interna- 
tional law — not being all-encompassing — has not arrived at any" 
specific inhibitions against reasonable observational activities. Such 
activities have been held to be nonaggressive and in the greater inter- 
ests of both states and mankind. On these facts it may be supposed 
that such observational activities will be continued since they are 
both lawful, nonaggressive, and generally beneficial. 

D. THE SPECIAL SOVIET VIEW OF COMMUNICATIONS 
ACTIVITIES 

The Soviet draft declaration of basic principles of April 16, 1963,, 
provided "5. The use of outer space for propagating war, national 
or racial hatred or enmity between nations is inadmissible." 86 Para- 
graph 7 provided, in part, "All activities of any kind pertaining to 
the exploration and use of outer space shall be carried out solely by 
States." 87 

The Soviet purpose here, as previously, was to provide an interpre- 
tation of the General Assembly Resolution 1721 (XVI), and to im- 
pose restrictions upon the free and peaceful use of outer space. 
Their underlying concern- — again based on the expectation of main- 
taining a closed society — was that privately owned communications 
facilities in the western world might be used to disseminate ideas 
unacceptable to communist theory and practice within the Soviet 
Union. Thus, although the Soviet proposal expressly referred to 
certain kinds of propaganda, the purpose was to obtain the accept- 



86 u.N. Doc. A/AC.105/C.2/L.6, 2 ; U.N. Doc. A/AC.105/12 Annex I, 5. See 
Annex 16, infra, pp. 466-468. 
» 7 Ibid. 

791-405— 66— —20 



296 

ance of a principle upon which it might be urged that information 
emanating from the free world might be legally excluded from the 
Soviet Union. 

The Soviet delegate in explaining the purpose of the proposal 
took into account what he considered to be the undesirable phe- 
nomena resulting from private capitalist competition as well as cer- 
tain achievements of modern technology. In urging against the 
promotion and dissemination of "inhuman ideas," he noted that the 
General Assembly had "envisaged that possibility in 1947, when it 
had adopted Resolution 110 (II) on measures to be taken against 
propaganda and the inciters of a new war." 8S 

When the committee on the Peaceful Uses of Outer Space met in 
September 1963, the Soviet delegate made only passing reference to 
the fact that his government attached "considerable importance to 
eiforts finally to achieve agreement on the impermissibility of the 
use of satellites * * * for war propaganda and for propaganda con- 
nected with national and racial hatred and enmity among people." 89 

The first reaction to the Soviet propaganda principle varied from 
the belief that it was beyond the competence of the legal subcommit- 
tee to discuss it, to the view that it went beyond international law, 
and also to firm support of it. As with the Soviet proposal dealing 
with "espionage," the states in the Communist Bloc were its sup- 
porters, while the representatives from other states expressed opin- 
ions varying from outright rejection to conditional approval. The 
United States, as with the proposal for prohibiting "espionage" by 
satellite, expressed no opinion on the subject. 

At the April-May 1963, legal subcommittee meeting it was the view 
of the delegate of the UAR that the propaganda proposal "went be- 
yond international law * * *" 90 The Italian delegate thought that 

ss U.N. Doc. A/AC.105/C.2/SR.17, 7 Resolution 110 (II) provided: "The Gen- 
eral Assembly 1. Condemns all forms of propaganda, in whatsoever country 
conducted, which is either designed or likely to provoke or encourage any 
threat to the peace, breach of the peace, or act of aggression ; 2. Requests the 
Government of each Member to take appropriate steps within its constitutional 
limits: (a) To promote, by all means of publicity and propaganda available 
to them, friendly relations among nations based upon the Purposes and Prin- 
ciples of the Charter; (b) To encourage the dissemination of all information 
designed to give expression to the undoubted desire of all peoples for peace." 
J 947-19^8 Yearbook of the United Nations 93 (1949). 

89 U.N. Doc. A/AC.105/PV.20, 46. The more subdued positions of the Soviets, 
in contrast to that expressed in the Spring of 1963, is reflected in the Soviet 
delegate's statement to the committee. He observed that "Rapprochement on 
questions which still remain to be settled may be achieved on the basis of 
reasonable compromise and mutual concessions." Ibid. 

90 17.2V. Doc. A/AC.105/C.2/SR.18, 4. 



297 

the proposal went beyond the competence of the body and that the 
injection of it would only lead to a conflict of opinion which might 
limit affirmative progress in other areas. He observed that "Although 
it was true that the problem of propaganda was related to the use of 
outer space because a space-ship might be equipped with transmitting 
gear, the legal aspects of propaganda would not differ if the trans- 
mission was received from a radio located on earth or conveyed 
through a space-ship. The origin of the transmission was not the 
point at issue." 91 This view was supported by France, 92 Australia, 93 
Argentina, 94 and the United Kingdom. 95 

Canada and Brazil suggested alternative proposals. The Canadian 
delegate suggested a principle formulated in positive terms, namely : 
"States shall endeavor to direct their activities in outer space towards 
the maintenance of international peace and security and the achieve- 
ment of international co-operation and understanding." 96 Brazil 
favored a specific agreement, in accordance with the principles of 
the Charter, which "should prohibit any State from using global 
telecommunications systems to intervene in the domestic affairs of 
another State." 97 The United States simply adhered to its view that 
international law was applicable to outer space activities. 98 

On the other hand, the western bloc countries did not favor the use 
of outer space as a forum for the dissemination of war propaganda 
and incitement to national or racial hatred and discrimination. If, 
as they agreed, the principles and rules of international law which 
applied elsewhere also applied in outer space, there was no reason to 
restate acknowledged limitations. 99 

The countries favoring the Soviet proposal urged the need for a 
more positive inhibition upon the uses of outer space. This was the 
view of Czechoslovakia, 100 and Hungary, 101 which specifically charged 
that "The conduct of space activities, in any form, by private persons 
or organizations was therefore inconsistent with the principles of 

91 U.N. Doc. A/AC.105/C.2/SR.20, 3. 

92 .U.N. Doc. A/AC.105/C.2/SR.22, 14. It opposed a state monopoly. 

93 U.N. Doc. A/AC.105/C.2/SR.23, 6. 

94 U.N. Doc. A/AC.105/C.2/SR.24, 10. 

95 Ibid., 12. 

96 U.N. Doc. A/AC.105/C.2/SR.21, 7. The British representative noted that 
this was an interesting proposal. 

97 U.N. Doc. A/AC.105/C.2/SR.24, 7. 

98 U.N. Doc. A/AC.105/C.2/SR.28, 9. 

99 This was also the view of this Polish representative. U.N. Doc. A/AC.105/ 
C.2/SR.19, 7. 

ioo C7.2V. Doc. A/AC.105/C.2/SR.20, 8. 
101 U.N. Doc. A/AC.105/C.2/SR.26, 4. 



298 

international law * * *," 102 and Bulgaria which supported the Soviet 
proposal on the ground that it was humanitarian. 103 Albania main- 
tained that the acceptance of the principle would lead to the conclu- 
sion of detailed agreements on such specific subjects as assistance 
to astronauts in distress and liability for damage. 104 Romania upheld 
the Soviet proposal on the ground that it would help to encourage 
constructive international cooperation. 105 These debates resulted in 
the incorporation of the following language into the unanimous Gen- 
eral Assembly Resolution 1962 (XVIII) of December 24, 1963: 
"Resolution 110 (II) of 3 November 1947, which condemned propa- 
ganda designed or likely to provoke or encourage any threat to- 
the peace, breach of the peace, or act of aggression, and considering 
that the aforementioned resolution is applicable to outer space- 
* * *" 105a Presumably such language has given to the Soviets one 
additional assurance that outer space is to be used for peaceful, i.e.,. 
nonaggressive and beneficial, purposes. 

As the subcommittee concluded its April-May 1963 meetings, the 
representative of the United States stated that if that body were to 
succeed in bringing forth acceptable recommendations a its members 
would have to be motivated to "engage in the give and take of in- 
ternational discourse and to make adjustments in their positions in 
order to achieve a consensus." 106 Concerning the means by which 
ideas might be disseminated, the answer of the Soviet representative 
was that "Only States fully cognizant of their responsibilities should 
be allowed to engage in space activities: to give private companies 
a free hand in outer space could lead to chaos and anarchy." 107 

However, by September 1963, the Soviet Union had modified con- 
siderably its views that only national bodies might embark on outer 
space programs. Thus, the Soviet representative told the Commit- 
tee on Peaceful Uses of Outer Space that it would be willing to 
recognize the responsibility of international organizations for mate- 
rial damage caused by them during their space activities. He noted 
that "in the case of space activity being conducted by an international 
organization, responsibility for both the implementation of the prin- 
ciples of the declaration and for possible material damage caused on 



102 U.N. Doc. A/AC.105/C.2/SR.21, 4. 

103 U.N. Doc. A/AC.105/C.2/SR.23, 8. 

104 U.N. Doc. A/AC.105/C.2/SR.24, 3. 

105 U.N. Doc. A/AC.105/C.2/SR.26, 7. 
105a See Annex 4, infra, pp. 450-452. 

106 U.N. Doc. A/AC.105/C.2/SR.28, 9. 
1Q 7 Ibid., 13. 



299 

the earth or in space, will be borne, together with the international 
organization also by States participants in it." 108 

Several days later the Soviets also acknowledged the permissibility 
of private companies engaging in space activities when supervised or 
controlled by their national governments. The Soviet delegate stated 
that "it would be possible to consider the question of not excluding 
from the [Soviet] declaration [of principles] the possibility of 
activity in outer space by private companies, on the condition that 
such activity would be subject to the control of the appropriate 
State, and the State would bear international responsibility for it." 109 
These more recent views of the Soviets indicate some elasticity in 
their conception of a suitable declaration of principles for national 
activity in outer space. This elasticity was reflected in the terms of 
the unanimously adopted United Nations General Assembly Resolu- 
tion 1962 (XVIII) of December 24, 1963. It made provision for con- 
ducting space activities by both governmental agencies and nongov- 
ernmental entities and stated in paragraph five that "the activities 
of nongovernmental entities in outer space shall require authorization 
and continuing supervision by the State concerned." 

The foregoing analysis of some of the conditions under which outer 
space may be used has demonstrated a number of salient positions. 
It has called attention to the need for an interpretation of the basic 
principles contained in General Assembly Resolution 1721 (XVI) 
of December 20, 1961. It has also served to illustrate the problem of 
moving in the direction of agreement on specific rules. The basic 
problem, of course, is and will continue to be the extent to which 
the uses of outer space will be free or limited. This directly affects 
the substance of reasonable uses and unreasonable or unpermitted 
uses. The Soviet Union, and the Communist Bloc, have demonstrated 
their demands for a limitation on the free uses of outer space — going 
beyond the bounds of practical reasonableness in the eyes of the west- 
ern world. The negative approach was best illustrated by the state- 
ment of the Soviet delegate to the legal subcommittee on May 2, 
1963. After charging that the United States had refused to support 
"the principle of equal rights for all States in the exploration and 
use of outer space," 110 although the representative of the United 
States had previously made it clear that a consensus existed on the 
principle of "the equality of rights of all States in the exploration 

108 U.N. Doc. A/AC.105/PV.20, 42. 

109 U.N. Doc. A/AC.105/PV.22, 37. United States private satellite operations 
are discussed in 1 Astronautics and Aerospace Engineering 23-52 (September 
1963). 

110 U.N. Doc. A/AC.105/C.2/SR.27, 6. 



300 

and use of outer space" m in accordance with international law, the 
Soviet delegate concluded : "Nor unfortunately had there been agree- 
ment on the principle of the freedom of outer space, since difference 
of opinion existed as to whether that freedom should be absolute or 
qualified." 112 Despite the unacceptability of the Soviet proposals 
relating to the collection of intelligence data by observational satel- 
lite and those relating to limitations upon the substance and means 
for the dissemination of ideas, there was a strong feeling among the 
members of the subcommittee that certain uses of outer space were 
unreasonable and therefore impermissible. Such uses have been char- 
acterized as nonpeaceful, i.e., aggressive and nonbeneficial. 

E. RESTRICTIONS ON USES OF OUTER SPACE 

The range of reasonableness, and therefore of permissibility, ex- 
tends from such generally accepted practices as the collection of sci- 
entific information by satellite through the practice of collecting 
intelligence data in the territory of a state to the unreasonable, and 
hence impermissible, use of outer space and space vehicles for aggres- 
sive purposes. The United States has adopted the policy of not plac- 
ing weapons possessing mass destruction capabilities in outer space 
and as early as the 1962 debates in the Political Committee of the 
United Nations, invited the Soviet United to conform to the same 
policy. 113 Efforts to obtain an understanding with the Soviets re- 
specting the presence of weapons of mass destruction stationed in 
outer space have been influenced by common efforts to interdict, as 
unreasonable, the testing of nuclear weapons in outer space. 

On April 18, 1962, the United States submitted a draft treaty on 
General and Complete Disarmament to nations endeavoring to reach 
an accord on this subject. The American draft provided in part D 
for Stage One that "The Parties to the Treaty would agree not to 
place in orbit weapons capable of producing mass destruction." 114 
Article 15 of the Soviet proposal of March 28, 1962, for "General 
and Complete Disarmament under Strict International Control" pro- 
vided that "Rockets and space devices shall be launched exclusively 
for peaceful purposes," and called for control teams from an interna- 
tional agency to be present "at launchings and thoroughly examine 



«* IUd. 

112 IUd. 

113 Senator Albert C. Gore, December 3, 1962. U.N. Doc. A/C.1/PV.1289, 16. 
Compare, Meeker, "Observation in Space," Department of State Press Release 
No. 191 (Revised), April 12, 1963, 6. 

114 46 Department of State Bulletin 747 (1962) ; 56 A.J.I.L. 906 (1962). 



301 

every rocket or satellite before launching." 115 And, prior to the 
Soviet proposal, the United States on September 25, 1961, had sub- 
mitted a plan for general and complete disarmament to the United 
Nations. In Stage I the proposal called for the prohibition of "the 
placing into orbit or stationing in outer space of weapons capable 
of producing mass destruction * * *" 116 The same proposal also 
called for states to give advance notification to participating states 
and to the International Disarmament Organization of "launchings 
of space vehicles and missiles, together with the track of the 
vehicle." 117 

President Kennedy called attention to the American position on 
September 12, 1962, when he stated that "We have vowed that we 
shall not see space filled with weapons of mass destruction, but with 
instruments of knowledge and understanding." 118 Pursuing this 
goal, and immensely assisted by the conclusion of the Moscow Treaty 
"banning nuclear weapon tests in the atmosphere, in outer space and 
under- water," 119 August 1963, Mr. Kennedy in addressing the 
United Nations on September 12, 1963, again laid emphasis on the 
need to keep weapons of mass destruction out of outer space. As the 
18-member United Nations Disarmament Committee began to turn 
its attention to drafting a resolution on this subject in October 1963, 
Mr. Kennedy again made the position of the United States clear 
when he stated on October 9, 1963, that "The United States has 
stated it would not put weapons in outer space. We have no military 
use for doing so and we would not do so." 120 It should also be noted 
that the Soviet Foreign Minister had placed some emphasis on the 

115 Few Times, No. 13, March 28, 1962; 56 A.J.I.L. 934 (1962). 

116 U.N. Doc. A/4891; 45 Department of State Bulletin 652 (1961). 
»» Hid. 

118 New York Times, September 13, 1962. 

119 The operative parts of the Treaty are contained in Article I, which in part 
provided: "1. Each of the Parties to this Treaty undertakes to prohibit, to 
prevent, and not to carry out any nuclear weapon test explosion, or any other 
nuclear explosion, at any place under its jurisdiction or control: (a) in the 
atmosphere; beyond its limits, including outer space; or underwater, including 
territorial waters or high seas; or (b) in any other environment if such 
explosion causes radioactive debris to be present outside the territorial limits 
of the State under whose jurisdiction or control such explosion is conducted. * * * 
2. Each of the Parties to this Treaty undertakes furthermore to refrain from 
causing, encouraging, or in any way participating in, the carrying out of any 
nuclear weapon test explosion, or any other nuclear explosion, anywhere which 
would take place in any of the environments described, or have the effect 
referred to, in paragraph 1 of this Article." 49 Department of State Bulletin. 
239 (1963). The Treaty is set forth in Annex 19, infra, pp. 470-472. 

120 New York Times, October 10, 1963. 



•302 

need to avoid positioning weapons of mass destruction in outer space 
in his September 1963, address to the United Nations. 

Prior to the unanimous adoption by the Political Committee of the 
United Nations on October 16, 1963, and the subsequent unanimous 
adoption of Resolution 1884 (XVIII) by the General Assembly on 
October 17, 1963, 121 there had been discussions in the legal subcom- 
mittee of the United Nations Committee on the Peaceful Uses of 
Outer Space on the need to avoid the positioning of such weapons 
in outer space. These discussions were carried on in the context of 
formally interdicting nonpeaceful, i.e., aggressive and nonbeneficial, 
uses of outer space. Thus, during the discussions carried out in the 
legal subcommittee in the Spring of 1963, the representative of the 
United Arab Republic indicated that peaceful uses would prohibit 
"the storage of weapons of mass destruction in artificial satellites 
circling the earth, the placing of missiles on the moon or the estab- 
lishment of military bases in outer space or on celestial bodies." 122 

Among the uses of outer space which are currently under discus- 
sion, particularly in terms of the reasonableness of the use, are the 
West Ford projects of the United States. The second effort in 1963 
succeeded in distributing a vast quantity of copper needles in a cir- 
cular orbit around the earth at an elevation of approximately 2,000 
miles. Such needles serve to transmit radio signals carrying voice, 
teletype, and high speed data. They have been designed to provide 
an invulnerable communications system which would be almost im- 
pervious even to nuclear explosions. 

The use of outer space as a dimension for the testing of nuclear 
devices has also been much debated in terms of reasonableness and 
hence permissibility. In all pre-Moscow treaty discussions the prob- 
lem of occasional — as opposed to frequent or continual — use had been 
raised, and it has been urged that an occasional use of an otherwise 
unpermitted form of conduct could fall within the range of reason- 
ableness. 123 Many factors, of course, have to be weighed in arriving 
at a conclusion as to the reasonableness, and hence permissible status, 
of such uses. 124 



121 Supra, p. 264-268. Annex 13, infra, pp. 462-463. 

122 U.N. Doc. A/AC.105/C.2/SR.18, 4. 

123 McDougal and Schlei, "The Hydrogen Bomb Test in Perspective, Law- 
ful Measures for Security," 64 Yale Law Journal 648 (1955). Compare, 
Margolis, "The Hydrogen Bomb Experiments and International Law," 64 Yale 
Law Journal 629 (1955). 

124 Infra, pp. 332-349. It is clear that a unilateral breach of the terms of 
the Moscow Treaty would absolve other signatories from the further obliga- 
tion to conform to it. 



303 

In seeking a policy as to the type of restrictions which ought to be 
imposed with respect to the uses of outer space, the United States 
has been guided by man's vast experience in the use of the seas. The 
law of outer space, by way of partial analogy with the law of the 
high seas, has adopted the principle that such space is free for peace- 
ful and reasonable uses. The United States has supported this result 
on the ground that it permits the use of outer space free of any re- 
straints except those of exclusive use and illegal activity, such as 
aggression. This position was stated in large part by the Deputy 
Assistant Secretary of State for International Organizational Affairs 
on March 12, 1962, when, in referring to General Assembly Resolu- 
tion 1721 (XVI), he stated that "Mankind would thus be free to use 
space on the same basis as it uses the high seas — free of any restraint 
except those on illegal activity, such as aggression and exclusive use. 
This formula is designed to promote the maximum exploitation of 
space technology in the service of human needs." 125 Thus, the pur- 
pose underlying the use of outer space has a direct bearing on 
whether such uses or activities in outer space are to be considered 
peaceful, reasonable, and lawful. The practical consequences of cer- 
tain uses will prove whether space activities serve human needs. 

One of the most important considerations to be weighed in ascer- 
taining the reasonableness of space conduct is whether it is carried 
on openly after suitable advance notice to the world. President 
Kennedy, in addressing the National Academy of Sciences on Octo- 
ber 22, 1963, announced a policy for the conducting of outer space 
experiments involving potential risk to the space environment. Ap- 
parently with the West Ford project and perhaps high-altitude nu- 
clear tests conducted in the Pacific in mind he stated : 

The government has the clear responsibility to weigh the im- 
portance of large-scale experiments to the advance of knowledge 
or to national security against the possibility of adverse and de- 
structive effects. * * * 

To deal with this problem, we have worked out formal proce- 
dures within the government to assure expert review before 
potentially risky experiments are undertaken. 

And we will make every effort to publish the data needed to 

125 Gardner, "Extending Law into Outer Space," Department of State Press 
Release, No. 159, March 10, 1962; 56 A.J.I.L. 798-799 (1962). Compare Gardner, 
"Cooperation in Outer Space," 41 Foreign Affairs 345 (1963) ; see also Gardner, 
"Outer Space: A Breakthrough for International Law," 50 A.B.A.J. 30-33 
(January 1964). 



304 

permit open discussion of proposed experiments by the scientific 

community before they are authorized. 126 

From these remarks it is clear that the United States proposes to 
publish the reasons for large-scale scientific experiments in outer 
space before they are finally authorized. This will permit open ex- 
amination and discussion of the proposed activities. However, the 
President's remarks left open the possibility that such procedures 
were not necessarily to be exclusive, and that in reality such proce- 
dures would not be followed if the intended experiment involved 
measures of significant importance to national security. To the ex- 
tent that the world scientific community will be consulted prior to 
embarking upon new and different experiments, it is indeed likely 
that the body of scientific opinion comprising COSPAR will be taken 
into careful account. In the formulation of this policy it is also clear 
that the United States has opened the way for other nations to con- 
form to comparable practices. The establishment of an international 
scientific consensus as to appropriate scientific practices will unques- 
tionably materially affect the substance of reasonable uses. 

In view of the fact it is difficult to identify the functions of 
aircraft and spacecraft after they have left the ground, one approach 
to the peacefulness or reasonableness of their missions has been to 
suggest the development of registration and inspection procedures 
for use prior to launch and flight. 127 The difficulty of ascertaining 
the intended purposes of space vehicles, after launch, may be com- 
pared with the problem of determining the mission of aircraft while 
in flight. This is particularly true when international tension is 
high. During the 1962 Cuban crisis between the United States and 
the Soviet Union, Mr. Khrushchev wrote to President Kennedy with 
regard to an American reconnaissance plane which appeared over the 
Chukotka Peninsula on October 28 : "Is it not a fact that an intrud- 



126 New York Times, October 23, 1963 ; Christian Science Monitor, October 
24, 1963. The American position that the West Ford experiment was "planned 
to avoid interference with other space activities and other scientific pursuits" 
was set forth in a communication by Ambassador Stevenson to the Secretary 
General of the U.N. on June 6, 1963. "United States Space Communications 
Experiment," United States Mission to the United Nations Press Release No. 
4219, 1 (June 6, 1963). 

127 The problem of arriving at information concerning nuclear test explosions 
is not entirely dissimilar. In this connection there has been agreement in prin- 
ciple between the United States and the Soviet Union that on-site inspections, 
both by means of automatic seismic stations and human inspection, should take 
place. See the exchange of letters of December 19 and 28, 1962, and of January 7, 
1963. "U.S. and U.S.S.R. Exchange Views on Nuclear Test Ban," 48 Department 
cj State Bulletin 198-202 (1963). 



305 

ing American plane can be easily taken for a nuclear bomber and 
this might push us to a fateful step * * *?" 128 

1. Preliminary Assessment of Factors to be Considered in De- 
termining Whether Outer Space Is Being Used for Reasonable 
Purposes 

Reasonableness of use in the final analysis must depend on at least 
three considerations, namely, the purpose or intent underlying the 
use of the space vehicle, the specific factual context of a given inter- 
national situation, and finally, the nature — including specific capabil- 
ities — of the vehicle itself. In some instances the very nature of the 
vehicle, when, for example, it is an instrument of mass destruction, 
would characterize its presence in outer space as an unreasonable 
one. In other instances, intent would have to be linked to the inherent 
capability of the vehicle in order to determine if it were to be em- 
ployed for overtly aggressive purposes. In such situations the nature 
of existing international relationships would have to be taken into 
account in arriving at a decision as to the reasonableness of space 
conduct. 

The presence of a weapon of mass destruction in outer space may 
be considered to be both unreasonable and unlawful as well as being 
destructive of the expectations relating to the peaceful uses of outer 
space. The fact that the major resource states have abstained from 
the positioning of such a weapon in outer space suggests that there 
is an awareness that such an act would be considered by the other as 
an unpeacef ul or aggressive one. Greater certainty would be achieved 
through the acceptance of an express and formal agreement not to 
place such weapons in outer space. However, such agreements would 
serve only as express promulgations of ongoing practices conceived 
to be in the respective mutual interests of the resource states. If it 

128 Text of Message, New York Times, October 29, 1962. Jenks, in 1960, 
noted that "mutual protection against surprise attack is the key to making 
effective the exclusive dedication of space to peaceful purposes ; the chief 
danger of activities in space unleashing war on earth may well lie in some 
inoffensive space vehicle being mistaken in a radar screen at a moment of 
heightened international tension for an inter-continental ballistic missile which 
has been launched for a military purpose. Advance notification of launching 
sites and firing schedules, the filing of flight plans and of descriptions of 
weight, load and size, and the use of agreed radio codes for the reception 
of data from space can all play a significant part in eliminating the military 
element." Jenks, "The International Control of Outer Space," Third Col- 
loquium 10 (1961) ; Legal Problems of Space Exploration, A Symposium 743; 
Compare, McDougal, "Artificial Satellites: A Modest Proposal," 51 A.J.I.L* 
1^-11 (1957). 



306 

may be agreed that the presence of instruments of mass destruction 
in outer space could serve no peaceful purpose, then the illegality of 
placing such space vehicles in outer space is supported by General 
Assembly Resolutions 1721 (XVI), 1802 (XVII), 1884 (XVII), and 
1962 (XVIII). 

2. Prelaunch Factors Affecting Reasonableness of Uses 

a. Verification and Inspection 

National intent to employ outer space for unreasonable uses may 
be determined in two ways. First, there may be an explicit claim to 
engage in an unreasonable use. Second, in the absence of such an 
explicit claim, and even in the presence of an explicit disclaimer that 
such activity was not unreasonable, a state through its conduct might 
engage in unreasonable space activities. 

In order to arrive at international assurance that launched space 
vehicles are not carriers of instruments of mass destruction, and to 
provide evidence respecting the claim that other space vehicles are 
designed and intended for reasonable, peaceful, and legal uses, it 
has often been suggested that such space vehicles and their activities 
be made the subject of verification and inspection. 

Such verification and inspection may take two forms. The first 
would consist of suitable examination prior to launch. The second, 
and less effective and less likely to provide an ordered structure for 
space activity, would be verification and inspection after launch. Pre- 
launch verification and inspection will be considered here. Postlaunch 
problems will be discussed in the following chapter. 

Proposals for some form of prelaunch inspection, either by non- 
nationals or by an international agency, have long been advocated. 
One of the first was that of McDougal, who prior to the IGY and 
the first Sputnik, urged that each state about to launch a satellite 
should "register its intent to do so with an international agency, to 
file a flight plan with such agency, and to file a description of the 
satellite's load, weight, size, etc. It would of course be impractical 
and not necessary to the proposal to include details of the launching 
mechanism, but complete information about the load could be regis- 
tered and this could be done with respect to both recoverable and 
nonrecoverable satellites. Beyond registration it might even be de- 
sirable as a guarantee of good faith to suggest inspection by the 
international agency to assure that the load conforms to the descrip- 
tion filed. A procedure of inspection need not, of course, include 
submission to prior approval." 

129 McDougal, ibid., 77. 



129 



307 

The U.N. Ad Hoc Committee on the Peaceful Uses of Outer Space, 
in its report of July 14, 1959, noted as a matter of priority the need 
for the identification and registration of space vehicles and co-ordina- 
tion of launchings. 130 The report suggested the "necessity of provid- 
ing suitable means for identifying individual space vehicles," and 
added that such "identification of space vehicles could be obtained 
by agreement on an allocation of individual call-signs to these vehi- 
cles; the call-signs could be emitted at stipulated regular intervals, 
at least until identification by other means had been established. 
Another means of identification is by orbital or transit characteristics 
of space vehicles." 131 The report, in addition to favoring registration, 
also noted the importance of identification. It stated "Registration 
might also afford a convenient means for the notification of launch- 
ings to other States, thus enabling them to make appropriate dis- 
tinctions between the space vehicles so notified and other objects, and 
to take appropriate measures to protect their interests if neces- 
sary." 132 

The American Bar Association's Committee on Law of Outer 
Space, 1959, noted the importance of "nothing less than foolproof 
international inspection and enforceable regulation of atomic activ- 
ities * * *" if there were to be adequate conformity with the needs 
of peace and security and the right of self-defense. 133 On this basis 
the Committee recommended that there be developed an "appropriate 
inspection and control system" for space activities. 134 The need for 
such a system was based not only on security considerations, but was 
also related to an orderly peaceful use of space. The latter would, of 
course, be maximized through the "advance filing of flight plans and 
coordination of launch times." 135 

The merit of establishing prelaunch inspection and identification 
procedures has also been justified in practical terms. It is probable 
at this time that a more meaningful inspection would be accomplished 
on the ground than after the vehicle had been placed in orbit. How- 
ever, the former approach has been resisted by states, particularly 
the Soviet Union, on the basis that it might carry with it collateral 

130 U.N. Doc. A4141 ; Legal Problems of Space Exploration, A Symposium, 
1269. 

131 Ibid. 

132 Ibid. 

133 "Report of the Committee on Law of Outer Space — Recommendations : 
1959," Legal Problems of Space Exploration, A Symposium 575. 

134 Ibid., 576. 

135 Lipson & Katzenbach, "The Law of Outer Space" (1960), in Legal Prob- 
lems of Space Exploration, A Symposium 815. 



308 

reconnaissance of launching sites and attendant espionage. It has 
been pointed out that "With the possible exception of inspecting 
vehicles at launching sites, inspection in outer space may be less of 
an invasion of privacy or of national sovereignty than inspection of 
weapons on the ground." 139 Sovereignty does not extend to outer 
space. 

The serious difficulties attendant upon the verification and inspec- 
tion of nuclear tests conducted by one state are similar to the prob- 
lems involved in the launching of space vehicles. Thus, for reasons 
of sovereignty, security and self-defense, seasoned by the Soviet's, 
large passion for secrecy, it has not been possible to arrive at a 
process for prelaunch inspection and identification of artificial satel- 
lites. It may be suggested, however, that an international agreement 
requiring international inspection and identification prior to launch 
would serve many useful purposes. In the first place, such inspection 
and identification process would quickly ascertain whether the space 
vehicle were equipped with instruments of mass destruction, and 
might either forestall the launch or publicize the nature and legality 
of the satellite. Secondly, by imposing a duty to submit to prelaunch 
inspection and identification, it would be possible to establish a pre- 
sumption that vehicles in orbit which had not been inspected and 
identified prior to launch were being employed for an unreasonable 
and nonpeaceful purpose. Thirdly, the prelaunch inspection and 
identification would grant to the launching state the right to contend 
that the launch was both reasonable and peaceful and thus shift the 
burden of proof to show the contrary upon those seeking to prove 
that the use was unreasonable and nonpeaceful. In short, prelaunch 
inspection and registration would permit the establishment of a 
prima facie case that the launch was both reasonable and peaceful, 
and, therefore, legal. Space vehicles in orbit, which could not offer 
evidence of prelaunch inspection and registration, on the other hand,, 
would presumably be designed for unreasonable and nonpeaceful 
purposes, and states offended by their presence would be entitled to 
exercise legal rights to achieve and maintain international peace, 
security, and self-defense. 137 

Although it might be supposed that a system of prelaunch inspec- 
tion and registration, particularly when conducted by a suitable in- 
ternational organization, might have much to commend it, there was 

136 Schelling, "The Military Use of Outer Space, with Particular Reference 
to Bombardment Satellites," in Goldsen, ed., Outer Space 44 (1960). 

137 Infra, pp. 319-331. 



30£ 

no possibility of writing such a provision into General Assembly 
Resolution 1721 (XVI). However, Part B of that Resolution did 
contain a provision calling upon states, in order to further the peace- 
ful exploration and use of outer space, to submit information on 
national launches on a voluntary basis. The Resolution called upon 
states "launching objects into orbit or beyond to furnish information 
promptly to the Committee on the Peaceful Uses of Outer Space, 
through the Secretary-General, for the registration of launchings." 138 
The Resolution also called upon the Secretary-General to maintain 
a public registry of the information furnished by member states. 
This function is being performed by the Secretary -General who after 
receipt of reports from the United States and the Soviet Union 
publishes and distributes the data received. 139 

The United States has reported vehicles launched into orbit or 
beyond under the following headings: international designation, 
launch vehicle, satellite category, date of launch, nodal period, in- 
clination, apogee and perigee in kilometres. It has also furnished 
supplemental information relating to vehicles which did not achieve 
orbit or those which no longer remain in orbit. United States satel- 
lite categories have been designated as "A" for development of space 
flight techniques and technology, "B" for space research and explora- 
tion, "C" for practical applications of space based technology, and 
"D" for nonfunctional objects. 

The Soviet Union has made reports concerning launchings of 
artificial earth satellites and space objects. It has assigned to them 
serial numbers, names, the purpose of launching, date of launch, 
perigee, apogee and inclination of orbit. Typical purposes assigned 
to launches have been the investigation of the upper atmosphere and 
outer space, physical study of the atmosphere, research in upper 
atmosphere and in outer space, attainment of escape velocity and 
exploration of interplanetary space, and medical and biological re- 
search under space flight conditions. It is possible that these respec- 
tive reports constitute opposing claims as to the presence of atmos- 
phere and the existence of a line or lines separating airspace from 
outer space. Thus, using for illustrative purposes the satellites which 
have maintained effective perigees at about 100 statute miles — the. 
lowest reported at the time of this writing — the United States has 
described such space flights as Category A, namely development of 

"8 U.N. Doc. A/5100. Infra, pp. 443-446. 

139 These appear as U.N. Doc. A/AC.105/INF.1. et. seq. The United States 
and the Soviet Union have filed reports periodically since March 7, 1962. 



310 

space flight techniques and technology. 140 However, the first manned 
space flight undertaken by the United StateSj Mercury-Atlas 6 (1962 
Gamma) of February 20, 1962, was described by the United States 
as one "launched into earth orbit" and "after four hours and 43 
minutes the spacecraft re-entered the atmosphere and landed * * *" 141 
The Soviet reports to the United Nations on manned space flights, 
Vostok 1 through 4, have been described as spaceship satellites, and 
the purpose of the launch has been described in scientific terms, such 
as human functioning under conditions of weightlessness, conduct 
of scientific observations, and improvement of functional systems. 142 
On the other hand, Soviet space vehicles, described by them as "satel- 
lites," or "sputniks" of the Cosmos variety, have maintained perigees 
varying from about 110 to 168 statute miles. Soviet reports to the 
United Nations have consistently described the purposes of these 
launchings to be "investigation of the upper atmosphere and outer 
space." 143 The Soviets have not, however, urged on the basis of this 
language that in a legal sense there is a boundary between airspace 
and outer space at such heights. In may be noted a also, that there 
is a belief that the Cosmos type satellite may be earth, as well as 
space, oriented in its observational capabilities. 144 

b. Exchange of Info?vnation Relating to Outer Space Activities 

Resolution 1721 B (XVI) also requires a close coordination be- 
tween the U.N. and governmental and nongovernmental organiza- 
tions concerned with outer space matters. To the end that there 
might be every encouragement to international cooperation in the 
peaceful exploration and use of outer space, the Resolution made 
provision for the "exchange of such information relating to outer 
space activities as Governments may supply on a voluntary basis, 
supplementing but not duplicating existing technical and scientific 
exchanges." 145 States have regularly submitted such reports, and the 
materials have been widely distributed. General Assembly Resolution 
1802 II (XVII) of December 19, 1962, has taken into account the 

140 This was true for the manned Mercury- Atlas 7 (1962 Tau 1) flight on 
May 24, 1962, the manned Mercury-Atlas 8 (1962 Beta Delta 1) flight on 
October 3, 1962, and the manned Mercury-Atlas 9 (1963 15A) on May 15, 
1963. U.N. Doc. A/AC.105/INF.10 ; U.N. Doc. A/AC.105/IXF.21 ; W.N. Doc. 
A/AC.105/INF.40. 

141 U.N. Doc. A/AC.105/INF.3, 4. 

1 42 U.N. Doc. A/AC.105/INF.2, 7 ; U.N. Doc. A/AC.105/INF.18, 2. 
i« U.N. Doc. A/AC.105/INF.18, 3 ; U.N. Doc. A/AC.105/INF.36, 2. 

144 The New York Times, May 27, 1963. 

145 U.N. Doc. A/5100. The Secretary-General of the U.N. has reported regu- 
larly on the received data. U.N. Docs. A/5109, A/5201/Add.l 2, A/AC.105/11/ 
Add.l. to Add 3. 



311 

receipt of such data from many states and expressed the view that 
other states and regional and international organizations having 
space programs should furnish the U.N. with such information. 146 
Such reports contain descriptions of national space programs and 
provide numerous examples of reasonable, peaceful and legal uses 
of outer space. The examples deal almost exclusively with scientific 
investigations being conducted in outer space. 

A Soviet commentator has emphasized the fact that Resolution 
1721 B (XVI) is not mandatory and that it deals only with the re- 
porting of postlaunch data. In noting that Part B of the Resolution 
refers to the need for prompt reporting of launches, Korovin has con- 
cluded that this "means subsequent and not advance registration; 
nor does the article specify the scope of information to be submitted 
on registration, which is determined by the state voluntarily making 
the registration." 147 The need to provide an orderly regime for the 
peaceful use of outer space has been considered by many commenta- 
tors. The following is a representative opinion: 

As satellite traffic increases, it will be necessary to arrive at 
juridico-technical agreements for the creation of a central regis- 
tration and data processing agency. This will also permit the 
establishment of the orbital elements which, in turn, will assist 
in identifying individual satellites. 

Without precise legal stipulations providing in advance of 
launching for full information about such items as the national- 
ity of all space vehicles, their anticipated launching dates and or- 
bital paths, their radio codes for transmission and reception of 
data, their agreed upon equipment and instrumentation, and cer- 
tain 'markings' permitting identification of space vehicles in 
orbit and after re-entry, the risk of miscalculation and ensuing 
human disaster will soon be real. 148 

The Japanese representative to the legal subcommittee of the Com- 
mittee on the Peaceful Uses of Outer Space has suggested that a non- 
launching state need not be obliged to return a space vehicle or its 
parts unless it had been provided with advance information con- 
cerning the vehicles in transit or in orbit. He stated that "The obliga- 
tion of non-launching States to return space vehicles should be 
conditioned upon the obligation of launching States to provide ade- 
quate information in advance. The information might be supplied 

146 U.N. Doc. A/RES/1802 XVII). Annex 3, infra, pp. 446-450. 

147 Korovin, "Peaceful Cooperation in Space," International Affairs (Moscow) 
63 (March 1962). 

148 Schick, "Space Law and National Security," International Affairs (Mos- 
cow) 58 (March 1962). 

791-405—66 21 



312 

through bilateral channels or by other appropriate means. In that 
connection, the timing and contents of the information provided un- 
der the registration system established by General Assembly Resolu- 
tion 1721 B (XVI) might be improved." 149 

c. National Consultation and Cooperation as to Purportedly Un- 
desirable Space Uses 
In keeping with the premise contained in Resolutions 1721 (XVI), 
1802 (XVII), and 1962 (XVIII) that international cooperation 
should play a large role in the peaceful use and exploration of outer 
space, several states have made proposals for consultation and co- 
ordination regarding national space programs so that space would 
not be used for unreasonable purposes. Such suggestions have been 
advanced to ameliorate the situation created by failure to reach 
agreement on p relaunch inspection and registration. Thus, the 1963 
Soviet Draft Declaration of the Basic Principles Governing the 
Activities of States in the Exploration and Use of Outer Space, 
Paragraph 6, called for: 

Co-operation and mutual assistance in the conquest of outer 
space shall be a duty incumbent upon all States; any measures 
that might in any way hinder the exploration or use of outer 
space for peaceful purposes by other countries may be imple- 
mented only after prior discussion of and agreement upon such 
measures between the countries concerned. 150 

The Soviet representative to the legal subcommittee introduced his 
remarks on Paragraph 6 by stating that the entire Soviet draft re- 
flected a number of views contained in the 1962 Draft Declaration of 
Principles Relating to the Exploration and Use of Outer Space pre- 
viously submitted by the United States. 151 He made specific reference 
to such principles as "the common interest of all mankind in the 
progress of the exploration and use of outer space for peaceful pur- 
poses, the use of such exploration for the betterment of mankind and 
of States, irrespective of their degree of economic or scientific devel- 
opment, and the role of co-operation in the use of outer space in the 
development of mutual understanding and the strengthening of 
friendly relations between nations and peoples." 152 

"9 U.N. Doc. A/AC.105/C.2/SR.22, 12. 

150 U.N. Doc. A/AC.105/C.2/L.6, 2 ; U.N. Doc. A/AC.105/12, Annex I. 

isi u.N. Doc. A/AC.105/12, Annex I 9-10. U.N. Doc. A/C.l/881. Annex 10, 
infra, pp. 459-460. 

152 U.N. Doc. A/AC.105/C.2/SR.17, 6. These views are contained in the pre- 
amble to the United States draft. See U.N. Doc. A/C.l/881. Annex 10, infra, 
pp. 459-460. 



313 

The Soviet delegate noted that his country's draft 153 proclaimed 
extensive rights for peaceful activities in outer space, but that there 
was a need to protect states and the international community as a 
whole against the abuse of such rights. He stated : "The idea of the 
free access of all States to outer space did not mean that States were 
free to engage in measures which might hinder other countries in 
their exploration or use of outer space for peaceful purposes. Outer 
space might be used for undesirable purposes and Paragraph 6 of 
the Soviet draft therefore mentioned the principle of prior discus- 
sion and agreement between the countries concerned." 154 He then 
referred to the role of COSPAR and the work of a subcommitte of 
the Inter- Parliamentary Union, and in particular to his country's 
concern lest experiments in outer space produce harmful effects and 
thereby interfere with the peaceful use of space. 155 

The Soviet delegate supported his views by referring to the 1962 
Draft Declaration of Basic Principles Governing the Activities of 
States Pertaining to the Exploration and Use of Outer Space of the 
United Kingdom, which had been previously circulated to the mem- 
bers of the committee. 156 Paragraph 1 of the British draft after 
noting the principle that "Outer Space and celestial bodies are free 
for exploration and use by all States in conformity with interna- 
tional law" 157 proceeded to enumerate four specific instances of the 
peaceful and reasonable use of such areas. The draft included within 
this category the provision: 

This freedom shall include free navigation by means of space 
vehicles, the establishment of space stations and other like de- 
vices, the conduct of scientific research, and the landing on and 
exploration of celestial bodies, and shall be exercised by all States 
with due regard to the interests of other States in the explora- 
tion and use of outer space, and to the need for consultation and 
co-operation between States in relation to such exploration and 
use. 158 

It has always been difficult to derive acceptable operational rules 
and procedures from commonly accepted principles. With regard to 
outer space no disagreement has existed respecting the needs to use 
outer space for peaceful and beneficial purposes. Neither has there 
been much doubt as to the need to achieve international cooperation 
so that national benefits and interests migrht be maximized. There 



153 Annex 10, infra, pp. 459-460. 

154 U.N. Doc. A/AC.105/C.2/SR.17, 6. 
15 s Ibid. 

156 U.N. Doc. A/C.l/879 ; U.N. Doc. A/AC.105/12, Annex I 8. Annex 18, 
infra, pp. 469-470. 

157 Ibid. 

158 Ibid. Italics added. 



314 

has been general agreement that nonpeaceful, i.e., aggressive, uses 
of outer space were not permissible. But there has existed dis- 
agreement as to the procedures which would best contribute to the 
realization of the desired goals. Specifically, by the end of 1964 there 
was no precise agreement as to how possible future abuses of the 
peaceful use of outer space could be controlled. The Soviet proposal 
called for prior discussion and agreement respecting possible misuses 
of outer space. The British draft called for consultation and coopera- 
tion on the part of resource states prior to engaging in launches 
which might be detrimental to the benefits and interests of mankind. 
Although the British proposal gathered more support than did that 
of the Soviets, neither procedure has become mandatory. 

The representative of the United States in 1963, noted that there 
had been a narrowing of differences and a clarificaion of viewpoints. 
He cited the fact that the United States, along with other states, had 
"endorsed the idea of appropriate international consultation on prob- 
lems of interference and contamination in outer space and of provid- 
ing for discussion of particular proposed projects." 159 In view of 
the continual United States support for the principle that "explora- 
tion and use of space should be carried out for the benefit and in the 
interest of all mankind * * *" 160 it recognized the need "for consulta- 
tion and co-operation between States * * *" to avoid harmful conduct 
in outer space. 161 In this connection it was recalled that COSPAR 
in April 1962, had created a consultative group "to study the problem 
of harmful experiments in outer space and to serve as a means for 
consultation and discussion. The United States, which was continu- 
ing to consult the international scientific community on matters of 
common interest in the field of space science, welcomed the establish- 
ment of the consultative group." 162 

159 U.N. Doc. A/AC.105/C.2/SR.28, 9. 

i6o ujf. Doc. A/AC.105/C.2/SR.16, 4. 

161 U.N. Doc. A/AC.105/C.2/SR.20, 11. 

i 62 Ibid. The consultative group is the Committee on Contamination in Extra- 
Terrestrial Exploration (CETEX). Jenks has noted that "unless clear rules 
on these matters exist from the outset and are strictly applied, space research 
will not yield the fruits which we are entitled to expect from it." Jenks, "The 
International Control of Outer Space," Third Colloquium 9. 

On May 28, 1963, the Soviet Union delivered to the Secretary-General a 
document entitled "Dangerous United States Activities in Outer Space," in 
which it was asserted that the West Ford project was impeding the peaceful 
uses of outer space. U.N. Doc. A/AC.105/13. On June 6, 1963, the United 
States submitted to the UN a detailed statement relating to the West Ford 
project in which it was pointed out that it was undertaken only after world- 
wide scientific opinion had been received and only after the United States 
"was fully confident that it would not have an adverse effect on any other 
activity." U.X. Doc. A/AC. 105/15, 7; United States Mission to the United Na- 
tions, Press Release No. 4219, June 6, 1963. 



315 

This position had been explained in December 1962, to the First 
Committee of the UN by Senator Gore. He had noted that : 

The problems of possible harmful effects of space experiments 
are difficult at best. They must be studied by competent and ob- 
jective scientific bodies. To this end we welcome the creation of 
a consultative group for this purpose by the International Com- 
mittee on Space Research, COSPAR. The United States will 
continue to conduct its space programme with a high sense of 
responsibility in this respect, making available to the world sci- 
entific community, both before and after the experiments which 
it conducts, as much scientific data as is possible. We trust that 
others will do the same. 163 
In order to insure that the space program of the United States might 
be as open and cooperative as possible, it has reported its launchings 
to the U.N. It has also made an "extensive and factual report on our 
space programme and plans to COSPAR every year." 164 

d. Elimination of Potentially Harmful Outer Space Experi- 
ments 

The Australian representative to the legal subcommittee pointed 
to general concern for the elimination of harmful experiments in 
outer space, and noted that the Soviet proposal of prior agreement 
would give one state "an actual veto on a State's proposed space 
activities." 165 In view of the unlikelihood that either resource state 
would be willing to be confined by such a restriction, the Australian 
representative suggested that a proposed potentially harmful use 
might be linked explicitly with COSPAR's consultative group. He 
also noted that the duty of states to "consult in the event of a po- 
tentially harmful experiment seemed to be either explicity or im- 
plicity * * *" a common characteristic of the British and Soviet draft 
proposals. 166 He also held that the 1962 draft of the UAR which 
called for state activities in outer space to take into account the safety 
of astronauts and to "be confined solely to the peaceful uses" 167 sup- 
ported the same conclusion. 

During the April-May 1963, U.N. debates, the representative of 
the UAR, in accepting the principle of the free use of outer space 
for peaceful purposes, expressed the view that such "freedom should 
be qualified and limited so as to provide guarantees against abuse." 168 

163 U.N. Doc. A/C.1/PV.1289, 17. 
16 *Ibid., 18-20. 

165 U.N. Doc. A/AC.105/C.2/SR.23, 6. 

166 Ibid. 

167 U.N. Doc. A/AC.105/L.6 ; U.N. Doc. A/5181. Annex 14. 

168 U.N. Doc. A/AC.105/C.2/SR.18, 4. 



316 

A form of such abuse would be an unnecessary interference with the 
safety of outer space. In this connection he stated that "some proce- 
dure should be found to prevent further experiments which might 
have harmful effects and prejudice the sane development of science 
in space. He referred in particular to the high altitude nuclear tests 
which had resulted in the disruption of the Van Allen belt and in- 
creased the potential danger of manned space flight." 169 This view 
was supported by the Indian representative, who added, however, the 
exception that "On rare occasions, a major experiment of such a type 
might be so important as to be desirable in the interests of science^ 
but it should first be discussed and cleared." 17 ° Implicit in his re- 
marks was the view that such discussion and clearance would be that 
of states and not of an international scientific organization, such as 
the consultative committee of COSPAR. However, he recognized 
the usefulness of the latter group. 

Other representatives had noted during 1962, the possible role of 
the consultative committee of COSPAR in assisting in determining 
in advance the potential dangers of space experiments. The Canadian 
delegate stated that he "welcomed the statement that the United 
States considered it desirable to have some international agreement 
on consultation regarding experiments in outer space which might 
have harmful effects and the suggestion that the consultative group 
established by COSPAR might serve as an appropriate instrument 
of consultation." 171 He was joined by the Austrian delegate in stat- 
ing that the participants had achieved a considerable rapprochement 
concerning the need for prior consultations relating to experiments 
affecting outer space. 172 

In commenting on Pargaraph 6 of the Soviet proposal, the Polish 
representative in 1963, noted that some scientists previously had un- 
derestimated the harmful result of space experiments. In order to 
avoid such hazards in the future, he opined that there should be 
"close cooperation and consultation between the States concerned." 173 
He did not, however, advocate the Soviet proposal of prior agree- 
ment. The Czechoslovakian representative, on the other hand, sup- 
ported the Soviet view that there should be prior international con- 
sultation and agreement before the introduction of potentially dan- 
gerous materials into outer space was permitted. He stated that such 
a step would "serve to guarantee the principle of national security 

1G *Ibid., 5. 

17 <> U.N. Doc. A/AC.105/C.2/SR.22, 7. 

171 U.N. Doc. A/AC.105/C.2/SR.27, 5. 

172 U.N. Doc. A/AC.105/C.2/SR.28, 3. 

173 U.N. Doc. A/AC.105/C.2/SR.19, 7. 



317 

and the maintenance of equal rights for all States. Any launching 
or space experiment undertaken without such consultation and agree- 
ment should be prohibited. In that connection, his delegation was 
distressed at reports that space experiments which had been viewed 
with misgiving in many quarters might be repeated." 174 He also 
noted, as had the Soviet representative earlier, that the "Inter-Par- 
liamentary Union's sub-commission on the law of outer space had 
recently voiced disapproval of space projects that did not meet in- 
ternational criteria of acceptability." 175 

By the close of 1963, the Soviet Union had not departed from its 
view that space experiments must depend upon prior discussion of 
and agreement upon such measures between the countries concerned. 
In rejecting the proposal of the United Kingdom that such experi- 
ments be based on consultation and cooperation, the Soviet delegate 
in April 1963, referred to the need for a very serious approach to the 
problem. He urged that it was not enough "merely to require prior 
consultation concerning such experiments; the essential need was 
for prior agreement." 176 

No effort was made to delineate the meaning of "countries con- 
cerned," and it may well be that the Soviet Union, as suggested by 
the Canadian representative, took the view that one state might veto 
space experiments. The Soviet position has not been accepted. Clear 
evidence of this exists in Paragraph 6 of General Assembly Resolu- 
tion 1962 (XVIII) of December 24, 1963. This paragraph provides: 
6. In the exploration and use of outer space, States shall be 
guided by the principle of co-operation and mutual assistance 
and shall conduct all their activities in outer space with due re- 
gard for the corresponding interests of other States. If a State 
has reason to believe that an outer space activity or experiment 
planned by it or its nationals would cause potentially harmful 
interference with activities of other States in the peaceful explo- 
ration and use of outer space, it shall undertake appropriate in- 
ternational consultations before proceeding with any such activ- 
ity or experiment. A State which has reason to believe that an 
outer space activity or experiment planned by another State 
would cause potentially harmful interference with activities in 
the peaceful exploration and use of outer space may request con- 
sultation concerning the activity or experiment. 177 



174 U.N. Doc. A/AC.105/C.2/SR.20, 9. 

175 Ibid. 

176 U.N. Doc. A/AC.105/C.2/SR.22, 4. 

177 U.N. Doc. A/RES/1962 (XVIII), Annex 4. 



318 

Even before the unanimous adoption of the foregoing paragraph, 
the Soviet Union, aware that its effort to obtain a veto over space 
experiments was not acceptable, called for states to "comply strictly 
with the provisions of General Assembly Resolution 1721 (XVI) 
concerning registration of space flights." 178 Other successful, and 
impressive, limitations upon the use of outer space for harmful or 
potentially harmful uses are reflected in the Moscow Treaty, 1963, 179 
and the General Assembly Resolution 1884 (XVIII) 180 relating to 
the positioning of weapons of mass destruction in outer space. 

Thus, it will be seen at the present time there is no disagreement 
respecting the need for peaceful and reasonable uses of outer space. 
There is no disagreement as to the need for international cooperation 
in ascertaining the nature of free and reasonable uses of such space. 
There is, however, no complete agreement as to what constitutes free, 
peaceful, and reasonable uses. Nor is there complete agreement as 
to the nature of restrictions which may be reasonably placed on the 
free and peaceful uses of outer space. There is being developed, how- 
ever, a consensus both with respect to the meaning of free and peace- 
ful uses. Thus, it is possible to develop, and there is developing, 
some meaning as to limitations upon the uses of outer space. How- 
ever, these important goals are handicapped by the failure of states 
to agree as to the appropriate procedures to be employed in determin- 
ing in specific instances what activities are beneficial and in the gen- 
eral interest of mankind and what activities are truly harmful. 
Despite these serious difficulties, it has, nonetheless, been possible for 
states working through the Committee on Peaceful Uses of Outer 
Space and other Committees of the United Nations to arrive at im- 
portant and specific areas of agreement concerning space activities. 
The Resolutions of the General Assembly have contributed sub- 
stantially to an understanding of space uses. 

After first calling attention to the legal rights possessed by states 
to maintain international peace, security, and to engage in self-de- 
fense in outer space, an analysis will next be made of areas of rap- 
prochement and consensus regarding legal uses of outer space. 

178 U.N. Doc. A/AC.105/C.2/SR.25, 13. 

179 Annex 19, infra, pp. 470-472. 

180 Annex 13, infra, pp. 462-463. 



CHAPTER V 

THE RIGHT TO THE MAINTENANCE OF INTER- 
NATIONAL PEACE, SECURITY, AND SELF-DEFENSE 
IN OUTER SPACE 

Attention has been called in preceding chapters to the emergence 
of principles and rules of international law permitting the free use 
of outer space for peaceful, i.e., nonaggressive and beneficial, pur- 
poses. Such purposes have been described as reasonable. It has been 
stated that when the uses and exploration of outer space and celestial 
bodies conform to such peaceful and reasonable activities that such 
conduct is lawful. 

Attention has also been called to the efforts of states, principally 
through their deliberations in the United Nations, to determine with 
some degree of specificity the kinds of limitations to be imposed upon 
space conduct. It is apparent that wholly unrestricted conduct in 
outer space would contribute neither to a structured legal order in 
space nor would it be beneficial to the needs of man. This is true no 
matter whether man is situated on the surface of the earth, in the 
airspace, or in outer space. 

With the massive application of modern science and technology to 
the secrets of outer space, it has become clearly apparent that this 
newly exploitable environment may be used in all of the traditional 
and conventional ways pertaining to airspace and to the earth's sur- 
face. With this understanding has come the need to consider the 
legal rights of a state to the maintenance of peace, security, and self- 
defense in outer space. 

The new tempo of man's existence has consolidated and capsulized 
both time and space. From this point of view there is a need for man 
to have an early and constant awareness of acceptable standards of 
space conduct and the content of space law. From the legal point of 
view it must be kept in mind, pursuant to General Assembly Kesolu- 
tions 1721 A (XVI), 1802 (XVII), and 1962 (XVIII), 1 and the 
consensus of states as reflected by their constant behavior, that inter- 
national law and the Charter of the United Nations apply to space 
activities. 



1 Annexes 2, 3, and 4, infra, pp. 443-452. 



320 

Just as certain standards of conduct have developed for the peace- 
ful exploitation of the scientific resources of outer space, so also there 
are both old and rapidly emerging standards applicable to the secu- 
rity needs of states in space. Thus, with the swiftly evolving capabil- 
ities of resource states to make use of the space dimension, there has 
also come the recognition that it is a sharable resource. Accordingly, 
its use is not limited or restricted to a single state. World claims to 
the exploitation of outer space have resulted from the actual uses of 
the dimension. Such claims have been honored through common 
usages and practices. 

The concept of claims has been developed by McDougal and Lip- 
son, who have stated that, like other claims in international law, the 
claims to the use of outer space "carry a promise of reciprocity, com- 
bined wherever possible with latent or expressed threats of retaliation 
or reprisal if the complementary promise is dishonored. This pattern 
of reciprocally tolerated access to outer space for sharable or inclu- 
sive uses may be restricted by the attempt to ensure the public order 
of the world community through devices providing security from 
military attack, preventing or at least making difficult the activities 
of unaccountable (flagless) space objects or spacecraft (to be com- 
pared with measures against piracy on the high seas) and imposing 
rules of the road." 2 

The requirements of national defense in the space age have taken 
on new proportions in view of the actual and potential applications 
of modern science and technology to outer space. Man's concern will 
be directed to protection from harm in outer space no less than to 
protection on earth from activities which have their source in space. 
His aspirations for security are deeply indigenous to his entire 
political-legal environment. 

Presently existing international legal obligations deny to states 
the legal right to threaten or engage in aggression in order to re- 
solve international disputes. While it is inevitable that serious differ- 
ences may exist among states as the result of competing national 
interests, yet it is possible for such difficulties to be resolved in the 
political-legal forum. This forum, represented in an institutionalized 
form by the United Nations and regional organizations, unhappily 



2 McDougal and Lipson, "Perspectives for a Law of Outer Space," 52 A.J.I.L. 
415-416 (1958) ; Legal Problems of Space Exploration, A Symposium 417. They 
have noted that states in the attainment of a modicum of security will be con- 
cerned with "the indefinite postponement of unacceptably destructive violence, 
the achievement of some stability of expectation as to modes of exercising 
effective power, [and] the maintenance of public order against hostile or reck- 
less or capricious threats." Ibid., 418. 



321 

is not a perfect one for the resolution of serious international conflict. 
Were it more perfect than it is, it might be possible for a monopoly 
of international sanctions to be exercised by an international institu- 
tion. Every effort, it may be suggested, must always be made to 
resolve outer space difficulties through collective international proces- 
ses. However, when such institutions — because of their primitive 
quality, or for other reasons — are not able to use effectively the 
powers possessed, or are lacking in powers, then it becomes readily 
apparent that states may be obliged in grave matters to engage in 
self-help. In international law this is known as the inherent right of 
self-defense. It may be collective or individual. Its use is circum- 
scribed by political and legal considerations. These considerations 
have direct applicability to national and international rights and 
duties in space. It has been observed that "The dangers to peace 
which exist and which may exist in the future stem from the threat 
or use of force in violation of international legal obligations. The 
standards which must be used in determining and controlling exer- 
tions of national power have not been altered by the new world which 
outer space activities has opened." 3 Under these circumstances, in- 
ternational respect for important common interests, based upon an 
awareness of the mutuality of certain interests among resource states, 
may serve as a foundation for an ordered legal structure for outer 
space. 

A. LEGAL AUTHORITY FOR DEALING WITH CERTAIN USES 

In the international arena, as in the municipal forum, many con- 
troversies may be resolved without recourse to force or coercion. 
The interests of the world community are very frequently best pro- 
tected through the use of negotiation in seeking the resolution of 
disputes. 4 Negotiation carries with it a vast range of opportunities 
for peaceful settlements, and diplomacy may be able to utilize the 
breadth of its capabilities in arriving at mutually acceptable resolu- 
tions of given problems. 

Law's scope for dealing with problem situations, although not so 
broad as that of negotiation, has, nonetheless, a wide spectrum of 
principles, standards, and rules through which international disputes 
may be resolved and ameliorated. The versatility of the law for 
successful compromise in the face of seemingly unresolvable difficult- 
ies has been well summed up by Jackson who has properly made 

3 Meeker, "Observation in Space," Department of State Press Release No. 
191 (Revised), April 12, 1963, 7; 48 Department of State Bulletin 750 (1963). 

4 U.N. Charter, Chapter VI, especially Article 33. 



322 

the point that law possesses a certain "statecraft." 5 It is as much 
the function of international law to establish the principle that space 
may be used freely for peaceful purposes as it is its function to 
establish the legal duty of states to abstain from certain uses of outer 
space. International law, including the U.N. Charter, assures to 
states the right to enjoy the benefits of international peace and secu- 
rity and provides them with a legal right to maintain international 
peace and security. A state is also entitled, under international law, 
to maintain its continued existence and is permitted pursuant to the 
rule of law to engage in measures of self-defense, either collective or 
individual, to uphold this right. 

Prior to the present century, international law devoted much of its 
attention to the regulation of the manner in which war between na- 
tions might be conducted. During the twentieth century, however, 
an effort has been made to transfer to the United Nations a monopoly 
on the use of international force. The manner in which states may 
protect their essential rights is now very much affected by the terms 
of the Charter of the United Nations dealing with the maintenance 
of international peace, security and self-defense. It should be noted, 
however, that the fundamental rights and duties of states are affected 
by the totality of international law no matter what form it may 
take. In addition to the Charter this includes, among other sources, 
general customary international law. From the latter is derived 
initially the inherent right of a state to protect itself against the 
aggressive or potentially aggressive conduct of another. 6 

1. The Legal Duty to Abstain from Certain Uses 

Through the deliberations at the United Nations, and by other 
means, it has been demonstrated that a virtually unanimous con- 
sensus exists that outer space and celestial bodies should be used 
solely for peaceful purposes. The existing resource states have given 
their approval to this principle. 7 The United States has from the 
very first insisted that space must be used for nonaggressive and 
beneficial purposes. "While the Soviet Union has not expressly and 
formally accepted this formula in an international treaty, it should 
be noted that it has not expressly — nor implicitly — rejected this view. 
Both states have clearly indicated that the use of outer space must 
be controlled, and this has demonstrated that both are of the view 
that certain, including some specifically delineated, activities are not 

5 Jackson, Jurisprudence in Action, Foreword, iv, (1953). 
« Infra, pp. 322-332. 

» U.N. Doc. A/5656; A/RES/1962 (XVIII), Annex 4, infra, pp. 450-452. Com- 
pare, U.N. Doc. A/5571; A/RES/1884 (XVIII), Annex 13, infra, pp. 462-463. 



323 

permissible. As a result of their discussions and exchanges of points 
of view, it has been possible for certain common interests to be 
identified. 

At the time of this writing neither state has placed weapons of 
mass destruction into outer space. Each has expressed the view that 
this should not be done and both have agreed to, and supported, 
General Assembly Resolution 1884 (XVIII). 8 Each has cautioned 
that if one should do so, the other would be obliged to act similarly. 
Thus, the condition at the present may be described as one of mutual 
restraint based on law. 

The existence of an express agreement in this area is important in 
view of the traditional principle of international law that when na- 
tional conduct is not prohibited, it may be argued that it is per- 
mitted. 9 Nonetheless, if resource states continue to refrain from this 
particular use of space for an undesignated period of time — probably 
a short period by reason of the speed with which customary interna- 
tional law affecting outer space has developed — it might, as a result 
of such conduct, readily be assumed that the stationing of such space 
objects in outer space or on celestial bodies had become unlawful. 
In view of the fearful dangers which the presence of such devices 
might potentionally bring to all mankind, or may be assumed to 
bring, it is hard to conceive that there could be a consensus support- 
ing their legality, or that their mere presence could be regarded as 
a peaceful use. 

2. The Right to the Maintenance of International Peace and 
Security 

To properly discuss this topic, it becomes necessary to make some 
assumptions. First, assume that a weapon of mass destruction has 
been unilaterally introduced into outer space or placed on a celestial 
body. Second, we must assume also that this action is violative of 
man's general expectations of a legal order in the universe because 
of the extreme threat of disastrous force represented by the presence 
of such an object. Under these circumstances there would arise a 
need to determine the legal bases for dealing with such a vehicle. 
Since the probable effect of the exploitation of such force would not 
substantially exceed the effect realizable through its presence and 
threatened use, there would appear to be no need to distinguish be- 
tween the threat of use and actual use. In short, mere presence pre- 
sumably would constitute so grave a danger that it could be legally 
assimilated to actual aggressive use. 

8 Op. cit. 

9 Supra, pp. 142, 266-267. 



324 

Aggression may be proven by demonstrating an intentional and 
wholly unprovoked armed attack. This is the clearest and most 
classic example. However, it is equally clear that aggression may 
take many forms. Thus, for example, the Inter- American Treaty of 
Reciprocal Assistance of 1947, frequently referred to as the Rio 
Treaty or Pact, made provision in Article Six for a condition in 
which an aggression "is not an armed attack * * * n 10 

Further, aggression appears to be but one of several ways in which 
great harm may be brought to a state and its people. It is frequently 
cited as a leading example because of the gravity of the consequences 
attendant upon its employment. However, the key problem is not 
so much the matter of aggression, but rather the application of an 
unacceptably large amount of harm — either immediate or potential 
(and if potential without a real opportunity for the potentially 
harmed state to redress the situation in a manner favorable to itself) 
by one state to another. Thus, the violation of the integrity of ter- 
ritory, or the prejudicial limitation of sovereign rights, or the re- 
striction of the political independence of a state, or the intentional 
violent modification of an existing political-military equilibrium by 
positioning weapons of mass destruction in outer space would each 
illustrate a national effort to apply an unacceptably large amount 
of harm by one state to another. This is taken into account by the 
Charter of the United Nations when it was made applicable to outer 
space and celestial bodies through General Assembly Resolutions 
1721 (XVI), 1802 (XVII) and 1962 (XVIII). General Assembly 
Resolution 1884 (XVIII) also has a direct application to this situa- 
tion. 

Article 1 of the Charter, in making provision for the purposes and 
principles of the Organization, provides that an essential objective 
is to maintain international peace and security. To this end, provi- 
sion is made for the collective "suppression of acts of aggression or 
other breaches of the peace. ? ' The same article takes into account 
the need for the adjustment or settlement of situations "which might 
lead to a breach of the peace." The Charter imposes the duty on each 
member to act in accordance with the following provision of Article 
2(4): 

All Members shall refrain in their international relations from 

the threat of use of force against the territorial integrity or 



10 21 UXTS 93, et seq. (1948) 



325 

political independence of any state, or in any other manner in- 
consistent with the purpose of the United Nations. 11 
In view of these provisions, albeit general in nature, it may be urged 
that there is a duty on the part of states not to position weapons of 
mass destruction in outer space or celestial bodies. Further, by reason 
of the express terms of General Assembly Resolution 1884 (XVIII), 
it is now clearly established that the presence of such weapons in 
outer space may be considered to be a threat to the territorial in- 
tegrity or political independence of any state. 

Under Article 1(2) each nation has the duty "to strengthen uiver- 
sal peace." Article 2(3) requires of each member that it not endanger 
"international peace and security" in the resolution of international 
disputes. Article 2(6) extends to nonmembers the duty to conform 
to u the maintenance of international peace and security." These 
articles, then, which set out the "Purposes and Principles" of the 
Charter, as well as other articles, make abundant reference to the 
legal duty of states to conform to the principles of "international 
peace and security." Additionally, as a regional requirement, there 
is the law of the 1947 Rio Pact. 

The legal principles of Article 2(4) fall into two parts. In the 
first, there is imposed a duty on states to conform to the principles of 
international peace and security by refraining from conduct which 
would unnecessarily and improperly aggravate interstate relations. 
It may be concluded that the placing of weapons of mass destruction 
in orbit, or upon a celestial body, or nuclear testing in the atmos- 
phere, outer space, or under water, would have such an effect, and 
that such conduct is not legally permissible. In the second, assuming 
the prior orbiting of weapons of mass destruction, or their emplace- 
ment upon a celestial body, or nuclear testing of the kinds inhibited 
in the Moscow Treaty, 1963, the principles of Article 2(4) permit 
action designed to correct such dangerous conditions. The action 
taken to correct such threats to international peace and security is 
neither in violation of Article 2(4) nor inconsistent with the pur- 
poses and principles of the Charter. 



11 For the background of Article 2(4), see Davis "First Commission: Gen- 
eral Provisions," in the United Nations Charter: Development and Text, 413 
International Conciliation (September 1945) ; 6 United Nations Conference on 
International Organization 80-82, 696-705 ; Russell and Muther, A History of 
the United Nations Charter, Chapters V-IX, XXIV, and pages 455-457, 473-476. 
655-657, 672-675, 1067 (1958). Compare McDougal and Feliciano. "Legal Regu- 
lations of Resort to International Coercion : Aggression and Self-Defense in 
Policy Perspective," 68 Yale Law Journal 1146 (1959). 



326 

Article 2(4) is, therefore, the source of a legal duty requiring 
states to desist from aggravated courses of action. It also is the 
source of affirmative corrective action — authorizing, but not requir- 
ing, states (either in an individual or collective capacity) to engage 
in protective measures intended to correct departures from funda- 
mental legal principles. This is not inconsistent with Chapter VI of 
the United Nations Charter and its provisions for the pacific settle- 
ment of disputes. 

3. The National Right to Self-Defense 

Just as the legal rights and duties which flow from the Charter 
concepts of international peace and security apply on the surface of 
the globe and to the superjacent airspace, so they apply also to outer 
space. And, as the legal concepts of self-defense have applicability 
on earth and in its airspace, they likewise have applicability to outer 
space. 

The international law of self-defense is derived from two principal 
sources. These are general customary international law and the 
Charter of the United Nations. Both sources are closely interrelated, 
and in fact the customary right of self-defense must be taken into 
account in interpreting the Charter provision, namely, Article 51. 
Article 51 provides in part : 

Nothing in the present Charter shall impair the inherent right 
of individual or collective self-defense if an armed attack occurs 
against a member of the United Nations, until the Security 
Council has taken the measures necessary to maintain interna- 
tional peace and security * * *. 

Customary international law has long recognized that self-defense 
is an inherent national right. It has been referred to as an "inalien- 
able right" 12 which has been "confirmed in the United Nations Char- 
ter." 13 Although Article 51 of the Charter uses the term "armed 
attack," it has not generally been thought that a state must actually 
have felt the force of an adversary's weapons before it may engage 
in legitimate self-defense. In looking at the customary principles of 



12 Deputy Secretary of Defense Gilpatric, Department of Defense Press Re- 
lease No. U,26-€2, (September 5, 1962). 

13 Ibid. Compare, Brownlie, "The Use of Force in Self-Defense," 37 Brit. 
Yb. InVl L. 219-247 (1961). A careful analysis has been made by Bowett, 
Self-Defense in International Law (1958) ; see also Mallison, "Limited Naval 
Blockade or Quarantine-Interdiction ; National and Collective Defense Claims 
Valid under International Law," 31 George Washington University Law Re- 
view 367 (1962). Compare, Kunz, "Individual and Collective Self -Defense," 
41 A.J.I.L. 872 (1947). 



327 

international law, it becomes clear that a state may engage legally 
in self-defense in provocative circumstances, particularly where it 
reasonably appears that the dangers being mounted against it may, 
if placed in motion, materially or substantially impair its way of 
life or prejudice its right to its own continued existence. 

A restrictive interpretation has been made of the national right of 
self-defense by those writers who have placed a literal construction 
on the term "armed attack" as contained in Article 51. This would 
require a state to remain passive until after a physical attack had 
been launched, and has been based on the view that the best evidence 
of an armed attack is the resultant force. This view refuses to take 
into account considerations of intention and manifestations of intent 
as demonstrated by observable facts and conditions short of the ulti- 
mate resort to force. 

In the space age, and particularly in the context of the possibility 
of introducing an artificial satellite into orbit equipped with a 
weapon of mass destruction, it does not appear to be reasonable to 
accept the literal interpretation of "armed attack" as the condition 
precedent to employment of measures of self-defense. An exces- 
sively narrow view of the meaning of "armed attack" is quite "out 
of keeping with the dynamic quality of law and with the tempo of 
our twentieth century social complex." 14 

Scientific and technological considerations make it impossible to 
accept the passive or "sitting duck" 15 view of armed attack from 
any of the earth's dimensions. Both general customary international 
law and the rule of Article 51 provide adequate foundations upon 
which to base action relating to the impermissible presence in space 
of weapons of mass destruction. This has been stated in McDougal 
and Lipson as follows: 

Certainly, in the absence of general agreement and community 
institutions to restrict inclusive uses to peaceful purposes, states 
will continue to assert, within the limits of their effective power, 
a unilateral competence to police or destroy space objects re- 

14 Christol and Davis, "Maritime Quarantine : The Naval Interdiction of 
Offensive Weapons and Associated Materiel to Cuba, 1962," 57 A.J.I.L. 532 
(1963). Compare McDougal and Feliciano, Law and Minimum World Public 
Order 121-260 (1961) ; Dillard ; Pugh ; Friedman; Lissitzyn in Columbia Law 
School News (November 7, 1962). 

15 Berle; Lissitzyn in Columbia Law School Neivs (November 7, 1962). The 
term "sitting-duck" is also used by McDougal and Feliciano in "Legal Regula- 
tion to Resort to International Coercion : Aggression and Self -Defense in Policy 
Perspective," supra note 11, at 260. 

791—405— 66 (22 



328 

garded as impermissibly affecting the security of their land 
masses. With respect to the oceans, assertion of such unilateral 
competence has been made and accepted for many purposes, in- 
cluding the protection of health, revenue, internal monopolies, 
and so on. Conceivably, a similar development in demand and 
reciprocal tolerance for a variety of purposes may occur with 
respect to outer space. 16 

Cooper has considered the precise issue presented here, and has 
asked "What are the rights of self-defense in outer space?" and 
"Concretely, when and where may a nation in self-defense attack 
a suspected spacecraft?" 17 He has also asked "Is it permissible for 
a state to intercept in outer space a foreign spacecraft known to be 
armed with a nuclear warhead and thereby constituting a source of 
potential attack on any state flown over?" 18 After a careful review 
of restrictive interpretations of Article 51 on the part of Kunz, 19 
Kelsen, 20 Jessup, 21 and Krylov, and less literal interpretations of the 
meaning of "armed attack" by Goodhart, 22 and McDougal, 23 Profes- 
sor Cooper has rejected the restrictive interpretations. In doing so 
he stated that "neither Article 2 nor Article 51 nor the Charter as a 
whole has, in my considered judgment, limited or destroyed the fun- 
damental right of a State to defend itself by force against imminent 
attack or danger threatening its existence. * * * Certainly the Char- 
ter was not intended as an instrument of reverse world feeling against 
aggression." 24 

Goodhart has stated the correct rule that "all powers which have 
not been expressly or by necessary implication transferred to the 
United Nations remain in the individual States. They hold these 
powers not by grant but by sovereign right." 25 Lord Kilmuir, Lord 
Chancellor of Great Britain, told the British Parliament on Novem- 
ber 1, 1956, with regard to the meaning of Article 51 that it "would 

16 McDougal and Lipson, supra note 2, at 427. 

17 Cooper, "Self-Defense in Outer Space and the United Nations," 45 Air 
Force and Space Digest 51-52 (February 1962). 

is JTbid., 53. 

19 Kunz, "Individual and Collective Self-Defense in Article 51 of the Charter 
of the United Nations," 41 A.J.I.L. 871 (1947). It should be noted that in 
some instances views on this subject expressed immediately after the drafting 
of the Charter have been modified by an appreciation of the scientific and 
technological changes in weaponry. 

20 Kelsen, The Law of the United Xations 797-799 (1951). 

21 Jessup. A Modem Law of Xations 163-100 (1955). 

22 Goodhart, "The North Atlantic Treaty," 79 Recueil des Cours 193 (1951). 

23 McDougal and Feliciano, supra note 11, at 1057. 

24 Cooper, op. fit., 55. 

- r > Goodhart, op. cit.. 55. 



329 

be a travesty of the purpose of the Charter to compel a defending 
State to allow its opponent to deliver the first fatal blow." 26 The 
situation was well summarized by Green, a distinguished British 
international lawyer, as follows: "The right of self-defense was in- 
herent before the Charter was written ; it has remained inherent and 
as such it covers preventive self-defense as well as self-defense re- 
sorted to after you have already been exterminated." 27 Elihu Koot 
in addressing the American Society of International Law summed 
up the basic proposition in 1914 when he stated that each sovereign 
state has the right "to protect itself by preventing a condition of 
affairs in which it will be too late to protect itself." 28 

The extent of national sovereignty is no measure of the area in 
which a state may employ legitimate measures of self-defense. Thus, 
self -defensive acts may be employed on and above the high seas, and 
they may also be used in outer space. The legal conditions under 
which valid self-defense may be engaged in have been well known 
and well respected for many years. The classic instance of self-de- 
fense, including limitations thereon, resulted from the destruction 
in the United States by British forces of a vessel, The Caroline, 
which had been employed in 1837 on the Niagara River in support of 
Canadian insurgents. It was the British contention that the act of 
destruction was an instance of valid self-defense. Daniel Webster, 
the American Secretary of State, asserted that it was incumbent 
upon the British and Canadian authorities to justify the attack, 
and that in order to do so it would be necessary to show "a necessity 
of self-defense, instant, overwhelming, leaving no choice of means 
and no moment of deliberation." 29 He also stated that where self- 
defense under such circumstances was admitted as being lawful, it 
was incumbent upon the actor to demonstrate that nothing unreason- 
able or excessive had been done, for, as he indicated "the act, justified 
by the necessity of self-defense, must be limited by that necessity 
and kept clearly within it." 30 

If, under appropriate conditions, self-defense may be pursued 
within the territory of another state, it would appear that there 
could be no objection to recourse to self-defense, if the conditions are 
appropriate, where the nonsovereign dimension of outer space is 
used. There would appear to be an even greater right, and certainly 

26 "House of Lords Debates," 6 Int'l d Comp. L. Q. 330 (1957). 

27 International Law Association, Report of the JfSth Conference 517 (1958). 

28 Root, "The Real Monroe Doctrine," 8 AJ.I.L. 432 (1914). 

29 The Caroline, 2 Moore, Digest of International Law § 217 (1909). Com- 
pare Jennings, "The Caroline and McLeod Cases," 32 AJ.I.L. 8 (1938). 

30 The Caroline, ibid. 



330 

no involvement with the doctrine of sovereignty, because of the pro- 
visions of General Assembly Resolutions 1721 (XVI), 1802 (XVII), 
and 1962 (XVIII). The latter states that neither outer space nor 
celestial bodies might be made the subject of "national appropriation 
by claim of sovereignty, by means of use or occupation, or by any 
other means." It would not be an invasion of the sovereign rights 
of a state to engage in legitimate self-defense in outer space. 

However, it would still be the duty of the state engaging in self- 
defense to employ only such measures as were reasonably proportion- 
ate to the threat. This doctrine requires an offended state to use only 
such proportional means as are necessary to induce the offending 
state to withdraw from its offending course of conduct, provided, 
however, that the offended state is not required by international law 
to delay its response in the face of any real threat. For example, 
in the 1962 maritime quarantine of the shipment of offensive weapons 
and associated materiel to Cuba, the interdictory activities were re- 
stricted to areas of the high seas radiating out from Cuba a limited 
distance, and the interdictory activities were limited to prescribed 
offensive weapons and associated materiel. This response was con- 
sidered by the United States to be proportionate to the condition 
resulting from the management and delivery to Cuba by Soviet per- 
sonnel of offensive weapons constituting a threat to the United States 
from Cuba. 31 However, in those circumstances it was abundantly 
clear, if Soviet weapons and personnel had not been removed from 
Cuba as the result of the limited coercive pressures imposed upon 
Soviet shipping, that additionally more severe coercive measures 
would have resulted. The doctrine of proportionality possesses a 
multioptioned spectrum of coercion. This was described by Secre- 
tary of State Eusk during the 1962 Cuban crisis in these words : "We 
must tailor our response, individually and collectively, to the degree 
and direction of the threat, be firm in our convictions and resolute 
and united in our actions." 32 

The doctrine of proportionality is not restricted to a condition of 
self-defense. Proportionality applies with equal logic to coercive 
actions taken in response to the need to enforce a condition of inter- 
national peace and security pursuant to the Charter of the United 
Nations, the Rio Pact, or any other international agreement specify- 

31 Christol and Davis, supra note 14, at 525-545. Compare Meeker "Defensive 
Quarantine and The Law," 57 A.J.I.L. 515 (1962). 

32 Rusk, "American Republics Act to Halt Soviet Threat to Hemisphere," 
47 Department of State Bulletin 721 (1962). On the concept of reasonableness, 
see McDougal, Lasswell and Vlasic, Law and Public Order in Space 293, 304-6 
(1963). 



331 

ing a duty to conform to the needs of international peace and secu- 
rity. In this connection, it should be noted that the 1962 maritime 
quarantine of the shipment of offensive weapons and associated mate- 
riel to Cuba was not based exclusively, or even essentially, on the 
legal doctrine of self-defense, but rather was based principally on 
the right of a collectivity of states, acting pursuant to a regional 
agreement within the compass of the U.N. Charter, to uphold, in an 
affirmative way, the principles of international peace and security. 
The Legal Adviser to the Department of State has described the 
1962 quarantine action as one "authorized under the Rio Treaty of 
1947, whose primary purpose was to organize law-abiding states for 
collective action against threats to the peace." 33 

4. Reprisals 

Reprisals in international law constitute a form of self-help, and 
are not unrelated to the doctrine of self-defense. In modern theory 
they are regarded as a form of force used by a wronged state against 
another because the first state has engaged in unlawful conduct ad- 
verse to the interests of the injured state. Were it not for the wrong- 
ful conduct of the guilty state, the response through the act of 
reprisal would be regarded as unlawful. A distinguishing feature of 
a repraisal has been that a national response need not conform to the 
form of conduct practiced against it, but may "take any form of 
coercion which the state believed to be effective to secure redress." 34 
Fenwick has also noted that "In principle, reprisals of the more 
drastic character were not to be distinguished from acts of war." 35 
However, it it is true that "acts of force performed by one State 
against another by way of reprisal * * * are not necessarily acts 
initiating war." 36 The other state always has an election as to 
whether it considers such acts as constituting an act of war. 

33 Chayes, "Law and the Quarantine of Cuba," 41 Foreign Affairs 555 (1963). 
Compare Chayes, "The Legal Case for U.S. Action in Cuba," 47 Department of 
State Bulletin 763 (1962). 

34 Fenwick, International Law 533 (3d ed. 1948). See The Naulilaa Incident, 
8 Recueil des Decisions des Tribunnaux arbitraux mixtes 409, 422-425 (1928) ; 
Briggs, The Law of Nations 677-679 (1938). 

35 Fenwick, op. cit., 533. 

36 II Lauterpacht-Oppenheim, International Law 203 (7th ed. 1952). Kunz 
has noted that "reprisals can be conceived of as sanctions, because they 
presuppose a delict, even if auto-determined by the state exercising the re- 
prisals * * *" "Sanctions in International Law," 54 A.J.I.L. 325 (1960) ; 
Article 41 of the U.N. Charter enumerates measures open to the Security 
Council not involving the use of armed force. Article 42 makes reference to 
measures by air, sea, or land forces. It is generally agreed that the use of 
such measures should be preferably collective rather than unilateral, when the 
maintenance of international peace and security is at issue. 



332 

Under these circumstances the illegal introduction into outer space 
by one country of an instrument of mass destruction contrary to 
General Assembly Resolution 1884 (XVIII) might be considered 
by another state to entitle it to act similarly. But, as reprisals need 
not conform to the initiatory action, it would be possible — through 
a reprisal action — for the harmed state to effect the destruction of, 
or to deal more sparingly with, the offending space vehicle and its 
weapon. At that point each state would have to decide whether the 
initial act and the response would result in a condition of war. The 
gravity of the initial illegal conduct would grant to the harmed 
state the right to use all suitable means to protect itself. 

In this area, as in the areas of self-defense and the maintenance 
of conditions of international peace and security, the international 
law of outer space will play a role. States, in arriving at policy 
decisions respecting the variable uses of outer space, must take into 
account "the ways in which authority will and should be prescribed 
and applied, will undoubtedly grow by the slow building of expecta- 
tions, the continued accretion of or repeated instances of tolerated 
acts, the gradual development of assurance that certain things may 
be done under promise of reciprocity and that other things must not 
be done on pain of retaliation." 



37 



B. COMPETENCE TO DEAL WITH CERTAIN USES 

A state, such as the United States, which continually has given 
evidence of its support of the rule of law in world affairs, must al- 
ways maintain a sound and sufficient legal basis for its activities in 
outer space. In the face of potential national conflicts of interest as 
to the uses of outer space and celestial bodies, the United States, 
along with other states, possesses certain options relative to legal con- 
duct. 

The enforcement of legal rights may be collective. On the other 
hand, it may be individual. These methods of procedure must be 
examined in the context of the principles of international peace and 
security as well as in the context of self-defense. Further, the con- 
cept of the maintenance of international peace and security as de- 
rived from the Charter of the United Nations must be examined in 
the additional context of enforcement by a regional agency or by 
separate and distinct collective security organizations. When emphasis 
is placed on a regional agency, such as the Organization of American 
States, attention must be focused on Article 52(1) of the Charter. 
When emphasis is placed on a wider collective security process, then 

37 McDougal and Lipson, supra note 2, at 420. 



333 

attention must be focused on Article 2(4) of the Charter, but at the 
same time taking into account the Charter in its entirety. At the 
same time due attention must be given to the general principles of 
international law, including general customary international law. 
This also holds true when enforcement procedures are contemplated 
through mutual security arrangements. 

In such situations the emerging international law of outer space 
has benefited very materially from the law of the sea. Both the high 
seas and outer space and celestial bodies fall into the legal category 
of res communis omnium. This means that each dimension is free for 
the use of all, but that in no case does such freedom entail unlimited 
or unrestricted conduct. As has been previously suggested, two im- 
portant modern limitations upon such freedom of use are that neither 
dimension may be used exclusively by one state, and lawful uses are 
restricted to nonaggressive, i.e., peaceful and beneficial activities. 

The 1962 maritime quarantine of the shipment of Soviet offensive 
weapons and associated materiel to Cuba, as one aspect of the law 
of the sea, affords valuable insights to the principles and rules of 
the international law of outer space. The 1962 maritime quarantine 
was a collective action, authorized under Article 52(1) of the U.N. 
Charter, and was implemented under the terms of Article 6 of the 
Rio Treaty. Article 52(1) provides in part: 

1. Nothing in the present Charter precludes the existence of 
regional * * * agencies for dealing with such matters relating to 
the maintenance of international peace and security as are appro- 
priate for regional action, provided that such * * * agencies and 
their activities are consistent with the Purposes of the United 
Nations. 
There is much legal analysis upholding the view that a collectivity 
of states, as in the maritime quarantine, has the right to uphold 
affirmatively international peace and security when such action is 
taken pursuant to a regional agreement within the compass of the 
Charter of the United Nations. 38 This view has received the express 
approval of the United States Department of State. 39 

As is well known, the maintenance of international peace and se- 
curity by collective measures is a primary responsibility of the United 



38 Christol and Davis, supra note 14, at pp. 537-539 ; McDevitt, "The UN 
Charter and the Cuban Quarantine," 17 The JAG Journal 72-75 (1963). 

39 Chayes, supra note 33, at 555 and 763 ; Meeker, "Role of Law in Political 
Aspects of World Affairs," 48 Department of State Bulletin 87 (1963). 



334 

Nations. Article 1(1) of the Charter, in setting forth the purposes 
and principles of the United Nations, provides: 

To maintain international peace and security, and to that end : 
to take effective collective measures for the prevention and re- 
moval of threats to the peace, and for the suppression of acts of 
aggression or other breaches of the peace, and to bring about by 
peaceful means, and in conformity with the principles of justice 
and international law, adjustment or settlement of international 
disputes or situations which might lead to a breach of the peace. 
Article 24, which makes provision for the functions and powers of 
the Security Council, grants to that body the "primary responsibility 
for the maintenance of international peace and security." This re- 
sponsibility, although primary, is not exclusive, and as a result of the 
"Uniting for Peace Resolution" of November 3, 1950, the General 
Assembly assumed the authority to engage in the maintenance of 
international peace and security during the Korean police action. 
This resulted in the implementation in Korea of collective security 
measures against aggressors located in North Korea and in Red 
China, and was certainly a notable precedent in the use of collective 
measures to protect the right of the world community to interna- 
tional peace and security. 

Collective defense measures may also be instituted pursuant to 
Article 51 of the Charter of the United Nations. Such action is law- 
ful when a state is obliged to engage in self-defense pending appro- 
priate action on the part of the Security Council (or General Assem- 
bly pursuant to the Uniting for Peace Resolution) to maintain 
international peace and security. Article 51 also makes express provi- 
sion for "the inherent right of individual" self-defense. In both 
instances the state or states engaged in individual or collective self- 
defense are required to report action taken by them to the Security 
Council. The Security Council, pursuant to Article 51, and the Gen- 
eral Assembly, pursuant to the Uniting for Peace Resolution's inter- 
pretation of the Charter, continue to have authority to take such 
action as is deemed reasonably necessary to maintain or restore 
international peace and security. 

Article 51 makes no legal delineation between collective or individ- 
ual self-defense other than in terms of the number of participants. 
However, the distinction between maintenance of international peace 
and security on the one hand, and self-defense on the other is marked. 
Self-defense may be either individual or collective. The presumption 
is that the maintenance of international peace and security would be 
by collective processes, although this is still open to some doubt, and 



335 

it may be possible to find situations in which the maintenance of in- 
ternational peace and security could be accomplished, initially, by 
individual means. 

In a recent analysis of the theory of collective self-defense, Mc- 
Devitt has come to the conclusion that a choice between collective and 
individual self-defense is not a legal one. It was his view that prac- 
tical conditions such as the nature of the provocative act, the type of 
danger likely to befall the receiving state, the capacity of the Secu- 
rity Council to take adequate control of the situation, the manner in 
which the offending state created the dangerous condition, and 
whether the defensive action taken was imperative under all of the 
attendant circumstances had to be taken into account in arriving at 
a decision. 40 In the space age, where time itself has taken on a new 
dimension and where the existence of fearful weapons of mass de- 
struction would constitute a threat of a new order of magnitude, the 
political and military considerations would seem to argue for individ- 
ual self-defense, if the threat were to emanate from a space-borne 
weapon of mass destruction. 

Although the term self-defense emphasizes individual as opposed 
to collective or universal defense, it should not be overlooked that the 
successful defense of one state serves as a substantial benefit to the 
whole community. Still, individual self-defense as a legal doctrine 
is subject to national abuse. In the 1962 Cuban situation, the govern- 
ment of Cuba asserted that it was permitted to position offensive 
weapons on its shores because of its need to defend itself against 
aggression from the United States. 41 Germany attacked Poland in 
1939 because of the claimed necessity for German "self-defense" 
against "aggressive" Polish intent. The doctrine has, throughout 

40 McDevitt, supra note 38, at 75-82. Compare Brownlie, supra note 13, at 
219, and Bowett, supra note 13. 

41 Third parties are prone to employ the term "aggression" in passing political 
judgment on interstate relationships. Thus the Soviet government during the 
1962 Cuban crisis stated that the President of the United States in upholding 
the collective quarantine action had tried "to justify these unprecedented 
aggressive actions by alleging that a threat to the national security of the 
United States emanates from Cuba." Further, "The United States Government 
accuses Cuba of allegedly creating a threat to the security of the United 
States. It is hypocrisy, to say the least, to allege that small Cuba can encroach 
on the security of the United States of America." The Soviets added, "all 
weapons of the Soviet Union serve and will serve the purposes of defense 
against aggressors." Further, "the Soviet Government will do everything in 
its power to thwart the aggressive designs of the imperialist circles of the 
United States, to safeguard and consolidate peace on earth." New York 
Times, October 24, 1962. Compare, Tunkin, "Introduction," 1960 Soviet Year- 
Book of International Law 22 (1961). 



336 

history, been convenient to those states which have sought to violate 
the sovereignty and territorial integrity of other states or to engage 
in power politics in the international arena. 

For this reason the use of collective measures is generally to be pre- 
ferred to individual coercive activities. In the international com- 
munity, no less than within the municipal processes of states, the rule 
of law generally requires that the first reference of disputes be to 
community legal processes. The maintenance and extension of man's 
central values require conformity to this goal. The Charter of the 
United Nations, as a legal document, as well as the conscience of man- 
kind, reflects the "Judgment of the world community that collective 
action is to be preferred to the unrestricted use of force by individual 
nations * * *." 42 It has often been urged that States living under the 
regime of that Charter can no longer find justification for the use 
of force in their mere unilateral declaration." 43 For these reasons 
it has often been suggested that "the willingness of states to under- 
take the enforcement of international peace and security is the mark 
of conscience and a developed standard of values." 44 The same holds 
true for the collective enforcement of the legal condition of self- 
defense. 45 

A sound policy decision between the use of collective as opposed 
to individual processes for the maintenance of legal rights in outer 
space must depend on the nature of the threat to community and in- 
dividual expectations for international peace and security. Many 
voices have pointed to the dangers which may be directed toward 
states from outer space. 46 

The nature of the dangers, and the need for immediate response 
to threatened harm from outer space, must necessarily affect a na- 
tion's choice to employ individual or collective measures. It also sug- 
gests the need for inordinate caution in arriving at a decision to posi- 
tion weapons of mass destruction in outer space. In this connection, 
Berkner in 1958, noted that it may be necessary to use such a w T eapon 
as a military force "but that its employment is sufficiently dangerous 

42 Chayes, supra note 33, at 553-554. 

43 Ibid. 

44 Christol and Davis, supra note 14, at 538. 

43 It should be noted that a preference for collective processes may serve the 
interests of those states possessing extensive and reliable security commit- 
ments. 

46 Gavin, War and Peace in the Space Age 220-1 (1958) ; White, "Air and 
Space are Indivisible," Air Force 40 (March 1948) ; White, "The Aerospace 
and Military Operations," 12 Air University Quarterly Review (Winter-Spring 
1960-1961) ; Lerner, The Age of Overkill (1962) ; Lapp, Kill and Overkill 
<1962). 



337 



to the uses in its present total form to imply that it can be used only 
with the greatest circumspection and for compelling motives." 47 
President Eisenhower's Science Advisory Committee, in 1958, stated 
a national policy when it observed "We wish to be sure that space 
is not used to endanger our security. If space is to be used for mil- 
itary purposes, we must be prepared to use space to defend our- 
selves." 48 Killian, in 1932, reconfirmed this view when he stated that 
for the sake of the free world the United States "must not slacken 
in (its) determination to maintain military strength adequate to 
deter an aggressor. This is still, in my view, the surest way to deter 
war and to give a sense of confidence and stability to the Free 
World." 49 

In 1962 President Kennedy stated that the United States could 
not go "unprotected against the hostile misuse of space any more 
than we go unprotected against the hostile use of land or sea." 50 In 
the same month, Secretary of State Rusk told the Senate that "no 
great nation can ever abandon its elementary right of unilateral 
action if that becomes necessary for its own security." 51 Although 
the response in October 1962, to the threat posed by the Soviet Union 
in Cuba was a collective one, President Kennedy in answer to a 
hypothetical question relating to that situation remarked that "the 
United States has the means * * * as a sovereign power to defend 
itself. And, of course, exercises that power; has in the past; and 
would in the future. But we, of course, keep to ourselves and hold 
to ourselves, under the United States Constitution, and under the 
laws of international law, the right to defend our security. On our 
own, if necessary — though we, as I say, hope to always move in 
concert with our allies, but on our own, if that situation was neces- 
sary to protect our survival or integrity of other vital interests." 52 

It seems reasonably clear that the right of a state to its continued 
existence, as reflected in its fundamental concern for its own security, 
is the central issue in international law and relations. International 
law authorizes states to protect their security rights by reference to 



47 Berkner, "Earth Satellites and Foreign Policy," 36 Foreign Affairs 225 
(1958). 

48 Introduction to Outer Space, The President's Science Advisory Committee 
I (1958). 

49 Killian, "Shaping a Public Policy for the Space Age," in Bloomfield, ed., 
Outer Space Prospects for Man and Society 187 (1962). 

50 New York Times, September 13, 1962. 

51 Rusk, "Situation in Cuba," Senate Committees on Foreign Relations and 
Armed Services, 87th Congress, 2nd Session 33 (1962). 

52 New York Times, November 21, 1962. 



338 

the legal doctrines of maintenance of international peace and security 
and of self-defense. Each doctrine may be implemented by collective 
measures. Self-defense may be implemented by individual measures, 
and perhaps international peace and security may be protected 
through the same procedures. 

At the present stage of the development of world institutions, it 
remains the duty of each state to determine for itself (although it 
may make this determination in a community forum) what condi- 
tions must exist for it to be secure. A state is therefore able to deter- 
mine for itself what it regards as an improper invasion or unper- 
mitted reduction of that essential condition of security. A state is 
also authorized, at least initially and in theory, to determine for 
itself the procedures whereby corrective action may be undertaken, 
and in this connection it may determine that it will be bound by col- 
lective procedures. On the other hand, each state has reserved from 
the application of collective procedures its inherent right of individ- 
ual self-defense, and depending on the nature of the threat to a 
state's security, it may be obliged to determine for itself how it will 
go about reestablishing that requisite degree of security. It may be 
obliged to have recourse to immediate and unilateral self-help. 

The means for maintaining or obtaining the requisite degree of 
security are theoretically, and perhaps, practically, unlimited. In- 
ternational law has sought to regulate the use of force, and addi- 
tionally, as has been pointed out, has sought to assure to collective 
processes the maximum management of the use of force. However, 
when fundamental national interests are at stake, the seeming illogic 
of the employment of substantial force — general war — may not be 
persuasive. The alternative of limited war may also prove illusory. 
Nonetheless, at some point the demands of national security may 
require the use of force or coercion, and reason requires that it be 
proportionate to the anticipated benefits. Security, like law or his- 
tory, is a seamless web. Therefore, challenges to it, in and from any 
dimension, including outer space, require the most searchingly intel- 
ligent responses which man is able to bring to bear on any question. 

The range of man's interests in security requires attention not only 
to his need for protection. These interests must also take into account 
an affirmative awareness that the unilateral avoidance of destructive 
conduct, including violence, in the dimension of outer space may con- 
tribute to world security. For national abstention from violence or 
the threat of violence in or from space may result in reciprocal con- 
duct on the part of other states. Unilateral avoidance of destructive 
violence and joint expectations respecting limitations on the use of 
force are capable of producing a condition of minimum public order 



339 

in outer space. The existence of such a condition can contribute 
materially to restraint in the use of outer space. The avoidance of 
reckless threats and provocative conduct may direct attention to the 
fact that national security is not exclusively the product of force. 

In arriving at a means to promote the security of a state — either 
by collective or unilateral means — it is necessary to take into account 
values supportive of the national interest in addition to the central 
one of security. Such additional values include, but are not limited 
to those of proper respect for legal processes and institutions, pro- 
tection of national interests through nonviolent means, the health and 
welfare of its citizens, the protection of cultural and spiritual prog- 
ress, the maintenance of a viable economy, a wide distribution of 
dignity and respect, and a protection of learned traditions within an 
environment capable of producing rational change. 

The means to promote such goals in addition to coercion include, 
among others, a continual enlargement of individual skills and 
knowledge, an enhanced resource reservoir capable of producing 
greater wealth and fuller employment, a dynamic and progressive 
science and technology, a more effective utilization of social and 
political capabilities, an extended national reputation resulting from 
a growth in prestige and respect, and, finally, more positive uses of 
the capabilities of international organizations, and in particular the 
United Nations. 

Through the latter, for example, it may be possible for a state to 
demonstrate its willingness to make use of peaceful processes to re- 
solve international disputes. In alluding to this use of the United 
Nations, Secretary Kusk stated in 1962, that one of the greatest 
strengths possessed by the United States in the post- Cuba crisis was 
that "we carry our purposes on our sleeve, and the purposes we carry 
are for peace within the framework of the United Nations kind of 
world community * * *." 53 

It has long been the policy of the United States to rely on the 
United Nations as a means for arriving at an acceptable regime for 
outer space. In 1960 Assistant Secretary of State Wilcox stated that 
"only the United Nations is able to cope with the complicated, politi- 
cal, legal, and technical problems involved in assuring the open and 
orderly conduct of space activities." 54 As has already been suggested, 
a further modest beginning in this direction would be the initiation 

53 "An Hour with the Secretary of State," CBS Reports, November 28, 1962, 8. 

54 Wilcox, "The United Nations : Crisis and Opportunity," 43 Department of 
State Bulletin 512 (1960) ; Compare Secretary of State Herter, "United Na- 
tions Foreign Policy under the Eisenhower Administration," 44 Department 
of State Bulletin 146 (1961). 



340 

of verified inspection and control procedures for satellite launches. 55 
There is general consensus that the United Nations will serve 
effectively as a means to minimize international tension, and even 
conflict, resulting from national activities in outer space. However, 
the chance of good success, particularly where the larger issues of 
security are involved, has been described as "highly improbable be- 
cause the Great Powers would expect to forego prestige advantages, 
possible military advantages, and at least some degree of military 
privacy, if they internationalized the development of outer space." 56 
Short of internationalizing the development of outer space, it is 
clear that important benefits have already resulted from cooperation 
between the two resource nations. But as Knorr has indicated, such 
cooperative benefits accrue when four conditions exist, namely, where 
there is a consensus that the space activity is primarily concerned 
with peaceful, i.e., nonaggressive and beneficial, purposes; where the 
activity is very expensive; where the activity is routine and lacking 
in prestige considerations; and where operational requirements, such 
as weather forecasting or television communications, require such 
cooperation. 57 

Within the context of selecting either collective or individual 
processes in order to cope with the prior positioning by a state of a 
weapon of mass destruction in outer space or on a celestial body, in- 
ternational law offers little detailed guidance. It does, however, 
provide suitable insight into the question of whether recourse must 
be had to the principles of international peace and security or to self- 
defense. In either event it may be well to recall under such circum- 
stances law has been described as a concession by force to reason. In 
the area examined here it would appear that reason would be well 
served by the avoidance on the part of states of tension creating situa- 
tions. Recognition of this fact has undoubtedly contributed to the 
existence of the Moscow Treaty, 1963, and General Assembly Resolu- 
tion 1884 (XVIII) of October 17, 1963. ; 



58 



55 Supra, pp. 306-318. 

56 Knorr, "On the International Implications of Outer Space Activities," in 
Goldsen, ed., International Political Implications of Activities in Outer Space 
151 (1960). Compare, Abt, The Problems and Possibilities of Space Arms Con- 
trol 1-52 (1961). 

57 Knorr, op. cit., 151. 

58 It will be recalled that in this Resolution the General Assembly unani- 
mously called on all states "(a) To refrain from placing in orbit around the 
earth any objects carrying nuclear weapons or any other kinds of weapons 
of mass destruction, installing such weapons on celestial bodies, or stationing 
such weapons in outer space in any other manner; (b) To refrain from causing, 
encouraging or in any way participating in the conduct of the foregoing activ- 
ities." U.N. Doc. A/RES/1884 (XVIII). Annex 13, infra, pp. 462^03. 



341 

C. PROCESSES TO INSURE THE REASONABLE USES OF 
OUTER SPACE 

With the growing recognition on the part of states that a principle 
of law exists supporting the free and peaceful use of outer space, 
there has also come a demand that space activities and uses be con- 
trolled in such a way that states may enjoy the fullest benefits of the 
principle. At this time attention will be called to the extent to which 
international law provides processes for the regulation of space uses. 
Such processes will be considered under the heading of noncoercive 
(permissive) processes and coercive (also permissive) processes. 
However, before surveying these processes, it is necessary to examine 
analytically certain factors which are pertinent to the selection of 
such processes. 

1. Factors to Be Considered in Selection of Processes 

The world community, including its separate but component parts, 
must take into account both practical and legal considerations in 
arriving at decisions relating to the reasonable uses of outer space. 
It would be pertinent, for example, for a state to relate its response 
to the conduct of another state, which through fast and covert action 
had positioned in outer space or on a celestial body, on a relatively 
permanent basis, a major offensive missile threat capable of nuclear 
mass destruction. A wholly different response might be in order if 
the satellite were equipped with observational devices permitting it 
to scan and report both cloud cover and happenings taking place 
on or above the high seas or within a state. In the one case the use 
would very probably constitute a deliberate and extraordinarily 
significant modification of the existing world power structure — a 
power structure which at the present time rests upon an "uneasy 
equilibrium depending upon a highly tentative balance of terror for 
its success." 59 On the other hand, observation, without more, fails 
to create a danger of overt harm. Rather, it provides a means of 
ascertaining the intentions of other nations, and hence, may con- 
tribute measurably to a condition of world stability, 
a. Precise Nature of Facts 

The precise facts to be taken into account with regard to ascertain- 
ing whether outer space is in fact being used for reasonable purposes 
are not different from the facts to be taken into account in the use 
of the high seas. Similarity in patterns of conduct has resulted in a 
similarity of legal status. Both, it has been suggested, follow the 



59 Cliristol and Davis, supra note 14, at 526. 



342 

concept of a res communis omnium, that is, both are open to reason- 
able use subject to reasonable controls. 

The following constitute the major, but not necessarily all of 
the facts to be taken into account : as suggested above, the nature of 
harm, if any, to the maintenance of international peace, security, and 
self-defense; the precise nature and location of a given weapon or 
weapons ; the comparative weapons capabilities and power structures 
of the contending nations (including their friends and allies) ; the 
physical location of the threatening space vehicle; the reality of 
the threat, if at all; the over-all nature of the political environment; 
the extent of implicit or express international agreement, including 
the existence of agreement, if any, on prelaunch registration, verifica- 
tion, and inspection of satellites; the extent to which resource and 
other states possess reciprocal interests and are motivated by the de- 
sire to achieve accommodations of conflicting interests; and the 
availability and effectiveness of alternate processes. These factors, as 
well as others, are constantly in motion, so that a perception of these 
considerations as well as their interpretation constitutes both an on- 
going and grave national responsibility. When such factors as those 
enumerated are balanced against such imponderables as the prospect 
of achieving international (or regional) support for collective meas- 
ures — or the supposedly somewhat more predictable unilateral re- 
sponses of a single state — it becomes readily apparent that factual 
problems do play a very large role in determining whether or not a 
state may engage in a given use of outer space. Without unneces- 
sarily pyramiding difficult factual considerations, it might also be 
noted that space uses cannot be separated from international atti- 
tudes toward a condition of general and complete disarmament. By 
reason of the fearsome capabilities of weapons of mass destruction 
situated in space, the policy maker who must determine the extent of 
reasonable use of outer space has grave responsibilities. Activities 
and processes in space, for better or worse, may very largely condi- 
tion man's expectations as to future activities in other areas. 

2. Noncoercive Processes 

This classification is intended to describe a means of achieving a 
reasonable use of space in which the role of military force plays no 
part. This distinction is made in view of the fact that force, in its 
larger sense, may take many forms of which military force is but one 
instance. Permissive measures to insure that outer space is used for 
reasonable purposes include such pacific, collective, or unilateral, 
actions as political, economic, or scientific procedures and public 



343 

opinion. As means of achieving compliance with legal expectations 
they may be regarded as sanctions, but, as stated above, they do not 
involve the use of military force or coercion. 

A means of expressing disapproval of state action and thereby 
endeavoring to induce a modification of state conduct has been to 
withdraw diplomatic recognition. This is an expression of disap- 
proval employing political processes and involves legal consequences. 
At times it has been regarded as a prelude to war, but it need not 
be. Political disapproval may also find expression in a policy of 
nonrecognition. 

Economic disapproval may take many forms. The best known are 
economic boycotts. This form of disapproval may be circumscribed 
by treaties and other agreements. 60 

Occasionally, scientific measures have been employed to induce a 
state to modify its course of conduct. This has usually taken the 
form of nondistribution of scientific data acquired by one state and 
useful to another. This measure has been used rarely because of the 
facility with which other states may retaliate, and because of the 
common need for this kind of data. 

Public opinion in a world of power politics may occasionally seem 
to be a slender reed upon which to place reliance in an effort to in- 
duce a state to conform to community expectations. Still, it is not 
without its influence, and there are those who honor it. This was 
seen by Gray who wrote that states take into account "the sanction 
arising from the opinion of civilized nations that the rules [of inter- 
national law] are right, and that civilized nations are morally bound 
to obey them." 61 

a. Legal Institutions and Activities 
Legal institutions, such as the United Nations, the International 
Court of Justice, and the Permanent Court of Arbitration at The 
Hague, are equipped to assist in determining the standards of rea- 
sonable use of outer space. Suitable ad hoc bodies may be created to 
serve this goal. 

60 According to Kunz "Non-military — economic, financial, diplomatic — sanc- 
tions, reprisals not involving the threat or use of military force, remain legal 
under the U.N. Charter. But the Bogota Charter of the Organization of Amer- 
ican States also expressly forbids the use of coercive measures of an economic 
or political character to force the sovereign will of another state and obtain 
from it advantages of any kind." "Sanctions in International Law," supra 
note 36, at 332. 

61 Gray, The Nature and Sources of Law 131 (2nd ed., 1927). Compare Root, 
"The Sanction of International Law," 2 A.J.I.L. 451 (1908). 

791-405—66 23 



344 

The United Nations, through the Resolutions of the General As- 
sembly, and particularly through the deliberations of the Committee 
on the Peaceful Uses of Outer Space, has already made great con- 
tributions to the development of a structured legal regime for outer 
space. 62 It will continue to do so, particularly through the process 
of drafting a series of technical conventions dealing with such mat- 
ters as liability and jurisdiction and return of space vehicles and 
personnel. 63 There is much support favoring the establishment of 
an office within the United Nations — either through the expansion of 
the Outer Space Affairs Section of the Secretary- General's Office — 
or, perhaps, by way of a new specialized agency, whereby greater 
international control might be exercised over activities in outer space. 
A primary function of such an office or agency would be to manage 
traffic control and also to engage in verified inspections and registra- 
tions of space launches. 

The International Court of Justice may be used to determine the 
meaning of international legal concepts contained in customary and 
express international law. This may be accomplished either through 
litigous cases or by way of advisory opinions. Litigation between 
states as to the meaning of reasonable use of outer space would pro- 
vide a most desirable process for the clarification of principles and 
rules of the emerging law of outer space. This would permit full 
use of the principles set forth in Article 38 of the Statute of the 
Court. A similar conclusion is attained if the problem were presented 
in the form of a request for an advisory opinion. 

It should be noted, however, that in the past the Soviet Union has 
successfully avoided the status of a defendant before the Court. It 
is almost completely improbable that the United States would be able 
to maintain a litigous action against the Soviet Union before the 
Court in view of the latter's probable use of the contention that 
a space problem affected the Soviet Union's domestic jurisdiction. 
Although Article 36(6) of the Statute of the Court makes provision 
that the Court shall be entitled to resolve issues of jurisdiction, the 
United States in accepting the compulsory jurisdiction of the Court 
made a reservation permitting it to determine for itself what con- 
stitutes a matter of domestic jurisdiction. The reservation operates 
on a reciprocal basis. Therefore, it would be possible for the Soviet 
Union to claim the use of the United States reservation in order to 



62 Supra, pp. 188-318. 

63 Infra, pp. 458-460, 463-470. 



345 

forestall adjudication of space problems. This reservation has been 
popularly known in the United States as the Connally Amendment. 64 

In view of anticipated difficulties in clarifying the substance of 
space law through litigous processes, there remains the possibility 
that valuable judicial talent may be utilized through the process of 
advisory opinions. 

The United Nations has provided the most effective forum yet con- 
ceived for the discussion and enlargement of space law principles. 
It may be assumed that in the future the Committee on the Peaceful 
Uses of Outer Space will continue to reflect the ongoing forces of 
customary international law, and will prepare drafts of principles 
and more detailed technical rules which will be presented to member 
states as resolutions, declarations, treaties, and conventions. Con- 
tinued discussions and debates will provide great insight into both 
the direction which the law is taking and also the speed with which 
it is being assimilated into national conduct. 

3. Coercive Processes 

The spectrum of coercion ranges all the way from the slightest 
plus over zero to unlimited and unrestricted force encompassed in the 
concept of general war. It is generally agreed that the amount of 
coercion employed should be proportionate to the dangers actually 
faced or within the range of reasonable contemplation. Reasonable- 
ness depends upon the practical circumstances of a given time and 
place and may be measured generally in terms of the amount of 
international tension. The latter, of course, is the product of physical 
capabilities and national intent, and both can be measured in terms 
of express and implied conduct. 

Such processes may be either national or international, e.g., in- 
dividual or collective. They may be based on two principal and al- 
ternative legal theories, namely, the right to maintain international 
peace and security, and/or the inherent right of self-defense. As has 
been indicated above, the collective process is preferable and possesses 
great moral and practical value when the danger of harm is some- 
what remote and the need for a response is not immediate, or at 
least, may be delayed. The unilateral response may be employed 



64 Hearings on S. Res. 196 Before a Subcommittee of the Senate Committee 
on Foreign Relations, 79th Cong., 2d. Sess. 1 (1946) ; 92 Cong. Rec. 10624, 
10694-97: Ohristol, "The United States and Prospects for a World Rule of 
Law," 7 South Dakota Law Review 24 (1962) ; Preuss, "The International 
Court of Justice, the Senate, and Matters of Domestic Jurisdiction," 40 A.J.I. L. 
736 (1946). Compare Case of Certain Norwegian Loans: I.C.J. Reports, 1957, 9. 



346 

when there is an immediate and proximate threat of substantial 
harm. 

Based on the requirements of proportionality and taking into ac- 
count the conclusions previously arrived at that peaceful, i.e., non- 
aggressive and beneficial, uses of outer space are reasonable and 
therefore legal, 65 it is suggested that the following protective uses 
may be employed. Let us assume that the fact situation is one in 
which one state has placed an uninspected and unregistered satellite 
into earth orbit or where the nature and capabilities of the satellite 
are unknown to the subjacent state. It is suggested that the subjacent 
state might proceed in the following sequence to protect its legal 
rights. 

First, it might engage in surveillance of the orbiting satellite from 
positions either on the surface, in the airspace, and in outer space. 
In the course of such surveillance it might approach the satellite in 
order to make visual or photographic or other mechanical forms of 
inspection. At this point harmful physical contact would be avoided. 
This could be based on the existence of a reasonable safety zone. 
Second, if the surveillance were to disclose facts indicating that the 
presence or purpose of the satellite involved a restricted amount of 
danger to the inspecting state, then the latter might cause the offend- 
ing space vehicle to modify its course. This assumes that modification 
of direction were in fact possible, that the modification of course 
would reduce or minimize the contemplated danger, and that the 
inspected satellite would agree to such procedures. Third, if due 
cause were shown to the inspecting nation and if the inspected satel- 
lite had failed to modify its course upon request, then, if the condi- 
tion were sufficiently grave, the inspected satellite might be taken 
into possession or intercepted by the complaining state. 

At this point several options would be open to the respective states. 
If the vehicle were proven to be in reasonable use, it might be re- 
leased to continue in orbit, or if this were not physically possible, it 
would be safeguarded by the inspecting state until it could be re- 
turned safely to the launching state. If, on the other hand, the space 
vehicle were in fact engaged in conduct unreasonably dangerous to 
the existence of the inspecting state, it might be rendered inoperative 
through destruction or other processes. In any event, personnel on 
board would be protected and repatriated to the national state. 68 



65 Supra, pp. 263-319. 

66 Goedhuis, after analyzing this problem, has concluded that "It is difficult 
to deny to a state the right to destroy a satellite which it believes presents a 
threat to the security of the state." He consulted the views of such writers as 



347 

The foregoing procedures, it is submitted, are preferred processes 
when there is an intention that general war should not result. This 
condition, short of general war, might result from the use of such 
processes if at the time of launch it is understood that a state has 
a reasonable right to assure itself that the presence of an orbiting 
satellite is not designed to cause it great and irremedial harm. How- 
ever, any process of inspection, no matter how reasonable and pro- 
portionate to the security needs of a state, may in fact, though 
needlessly, be made the basis for a general war. An early express 
agreement among resource states on detailed security procedures in 
space would greatly ameliorate this condition. 

Much of the problem would be resolved by general acceptance of 
the view that the presence of an observational type satellite conforms 
to the standards of reasonableness. However, until it becomes pos- 
sible to conduct positive identification of vehicles and objects in 
orbit or until suitable verification, inspection, and registration proce- 
dures have been established, the problem will continue to vex states. 67 

There is a growing consensus among writers that it is reasonable 
for states to use all available scientific and technological processes 
to ascertain the purposes and capabilities of transiting satellites. 
This is supported by the realization that space vehicles and devices 
may be equipped to achieve a great variety of uses. Thus, Crane has 
suggested postlaunch practices, which may be necessary in the inter- 

Kittrie, Quarles (Deputy Secretary of Defense), and Becker (Legal Adviser 
to the Department of State) in arriving at the foregoing conclusion. Goedhuis 
noted that Kittrie held that if a reconnaissance satellite threatens national 
security it might be destroyed or caused to malfunction and that Becker was 
of the view that something short of armed attack would justify national secur- 
ity measures. Quarles, on the other hand, urged that the mere presence over 
the United States of a Soviet reconnaissance satellite need not be considered 
to be objectionable. Goedhuis, "Some Trends in the Political and Legal Think- 
ing on the Conquest of Space." 9 Netherlands International Law Review 130- 
131 (1962). It has been urged, since at the present international law does not 
prohibit reconnaissance from outer space, that the intentional destruction of a 
peaceful reconnaissance satellite "would appear to be proscribed by the Charter 
as a 'use * * * of force * * * inconsistent with the purposes of the United 
Nations.' " The same author has concluded that "It would appear * * * that 
the doctrine of self-defense is too narrow to support such action." "Legal 
Aspect of Reconnaissance in Airspace and Outer Space." 61 Columbia Law Re- 
view 1082-1083 (1961). 

67 It has been stated in connection with scientific and military observation 
satellites that "it is not only diflicult to tell these kinds of observation satel- 
lites apart, it is impossible to do so." Katz, "The Technological Environment 
and its Prospects," in Goldsen, ed., International Political Implications of 
Activities in Outer Space 14 (1960). 



348 

ests of national security, namely, acquisition, tracking, identification, 
neutralization, capture, and destruction. 68 Kittrie has urged that 
if an observational satellite threatens national security it may be 
destroyed or caused to malfunction. 69 

The Davies Draft Code of Rules on the Exploration and Uses of 
Outer Space, in taking into account the security needs of states, has 
made provision for the diversion or destruction of space vehicles un- 
der certain circumstances. The draft accepts the view that no space- 
craft may at any stage of its flight enter the airspace of another state 
without the consent of the latter, except in the course of making an 
emergency landing. In the event of any other entry, the subjacent 
state may "divert or destroy any spacecraft which enters its airspace 
without * * *" the prescribed national consent. 70 

The term "interception" has also been used. Thus, Cooper has 
asked, "is it permissible for a State to intercept in outer space a 
foreign spacecraft known to be armed with a nuclear warhead and 
thereby constituting a source of potential attack on any State flown 
over?" 71 General Gavin urged as easly as 1958, the development of a 
"satellite interceptor." 72 Antisatellite operations could involve the 
"destruction or neutralization of a space object and this is far easier 
if one shoots from the orbital plane of the space object, approxi- 
mately under the satellite, even in the case of a maneuverable satel- 
lite." 73 

It may be expected that common practices now current on the high 
seas and in the airspace would be available in the identification of 
space vehicles. Under the law of the sea, the vessel of one state may 
approach the vessel of another state in order to ascertain its iden- 
tity, 74 although "warships on the high seas have complete immunity 
from the jurisdiction of any State other than the flag State." 75 Un- 
der certain circumstances a naval vessel may challenge, board, search, 



68 Crane, "Law and Strategy in Space," 6 Orbis 283 (1962) ; compare Crane, 
"Soviet Attitude Toward International Law," 56 A.J.I.L. 704-706 (1962). 

69 Kittrie, " 'Aggressive' Uses of Space Vehicles — the Remedies in Interna- 
tional Law," Fourth Colloquium 198-219 (1963). 

70 Draft Code of Rules on the Exploration and Uses of Outer Space 14 
(n.d.). 

71 Cooper, supra note 17, at 53. 

72 Gavin, supra note 46, at 224. 

73 Cagle, "The Navy's Future Role in Space," 89 United States Naval Insti- 
tute Proceedings 91 (January 1963). 

7 * The Marianna Flora, 11 Wheaton 1, 3 (1826) ; Brittin and Watson, Inter- 
national Law for Seagoing Officers, 2nd ed., 101 (1960). 

75 Article 8(1), Convention on the High Seas, U.N. Doc. A/CONF.13/L.53 
and Corr. 1. 



349 

and inspect the papers of a nonnational vessel. 76 Capture may result 
when there has been a serious violation of international law by a 
vessel on the high seas. 77 

Approach to vessels may be accomplished by other naval vessels or 
by aircraft, and in the latter instance may be quite close. In 1960 
the Soviet Union protested the "buzzing" of its vessel the "Vega" by 
United States public aircraft on and over the high seas. The "Vega" 
although ostensibly a fishing trawler, was equipped with extensive 
electronic equipment and had pursued a lengthy intelligence mission 
along the eastern coast of the United States. In rejecting the Soviet 
protest concerning the close approach to the "Vega" by United States 
aircraft, which protest was described as being "without foundation," 
the United States noted that "in such circumstances there is every 
reason for establishing the identity of such a vessel and the nature 
of its activity." 78 In recent years Soviet aircraft have also flown at 
low altitudes over United States naval vessels on the high seas. 

In conclusion, it should be noted that the foregoing recitation of 
coercive processes available to states, either collectively or individ- 
ually, are alternative rather than exclusive processes. States desiring 
to keep the peace and to achieve a minimum amount of world order 
may readily achieve this goal in outer space by exercising self- 
restraint in positioning weapons of mass destruction in that environ- 
ment. 79 Further, they may have recourse to all of the noncoercive 
processes w T hich have been suggested. Failing that they may employ, 
where the challenge to national security is extreme, the proportionate 
coercive processes which have been described. However, in the 
formulation of national space policy, every nation should take into 
account the possibility that its decision to make unreasonable uses 
of outer space may deny to all the fullest realization of the resources 
and potentials of outer space. It can be predicted that space resource 
states will not regard international law as irrelevant in arriving at 
policies seeking to maximize the peaceful and beneficial uses of outer 
space. A wide range of sanctions, depending on the nature of trans- 
gression, are recognized by international law. The key to their use 
is the doctrine of reasonableness as influenced by the quality of the 
danger. 

76 Articles 22 and 23, Convention on the High Seas, ibid. 

77 Schwarzenberger, A Manual of International Law 126 (4th ed. 1960) ; Mc- 
Dougal and Burke, The Public Order of the Oceans 885-893, 806-823 (1962). 

78 "United States Note of July 21, 1960," 43 Department of State Bulletin 
213 (1960) ; compare, Brownlie, supra note 13, at 247-254. 

79 By reason of General Assembly Resolution 1884 (XVIII), 1963, there ap- 
pears to be specific international recognition of the duty to avoid such space 
conduct. Annex 13, infra, pp. 462-463. 



CHAPTER VI 

LEGAL PROBLEMS ARISING FROM THE REASONABLE 

USES OF OUTER SPACE 

Even outer space is finite. Like the oceans it is subject, in varying 
degrees, to sharable use. In the course of the use and exploration of 
outer space and celestial bodies for peaceful purposes, a need has 
arisen to establish the range of peaceful uses as well as a structured 
legal regime capable of dealing with disputes that may grow out 
of such uses. It is the purpose of this Chapter to investigate several 
of the major legal issues which must be resolved if disputes over 
ways of using outer space and celestial bodies for peaceful, i.e., non- 
aggressive and beneficial, purposes are to be kept to a minimum. 

Several areas have been selected because of their importance to 
the reasonable uses of outer space. They include the problem of in- 
ternational responsibility and liability for damages for harms re- 
sulting from the use of space vehicles and devices, possessory rights 
over spacecraft, assistance to and return of space vehicles and per- 
sonnel to the launching or operating authority, allocation of radio 
facilities to space users, nationality of space vehicles, and jurisdiction 
over space disputes. 

The magnitude of these subjects may be affirmed through a recita- 
tion of some of the items which have been introduced into outer 
space. These include, but are not limited to, rockets, missiles, satel- 
lites, space stations or platforms, orbital laboratories, nuclear sub- 
stances by way of explosions or as power for generators, copper 
needles, sodium vapor, water, such electrical impulses as radio, tele- 
vision and radar signals, and laser and maser beams. These instru- 
mentalities and materials have had for their purposes the accumula- 
tion of scientific data regarding the nature of the universe, data 
relating to the functioning of many kinds of spacecraft, and a great 
variety of hybrid data. Acquisition of data will lead to improvement 
in weather meteorology and forecasting, geodetic and navigational 
facilities, scientific investigations, observational procedures, com- 
munications media, resource exploitation, transportation, and to a 
more complete understanding of all of the less tangible scientific, 
social, and political uses of outer space. 



352 

Space problems will arise from the conduct of those entities en- 
gaged in launching, orbiting, and return procedures. The conduct 
may be by a state, groups of states, international organizations, or 
even private business entities. 

Through the formulation of specific rules, it may be possible to 
achieve a minimum interference with the reasonable uses of outer 
space. Further, by obtaining tentative answers to these issues, there 
will be greater insights into and a more substantial clarification of 
the body of outer space law. In particular, it will be possible to add 
meaning to the concept of the peaceful uses of outer space. 

A. INTERNATIONAL RESPONSIBILITY AND LIABILITY FOR 
HARM AND DAMAGES 

1. The Nature of the Problem 

The relationship of individuals, governments, and international 
organizations to harm resulting from the practices and procedures 
of space vehicles has been analyzed by many commentators. They 
have stressed the possibility of damage occurring on the surface of 
the earth — either on land or at sea. Such damage may also occur in 
the airspace and in outer space. It may result from accident, mistake, 
or from intentional conduct. According to Haley: 

Today, in spite of the extraordinary technological advances 
which have been made, a launched rocket vehicle occasionally 
descends to earth far from the spot chosen as its destination. 
Inevitably, the ever- increasing range attainable by rocket vehi- 
cles will enhance the probability that such mishaps will not be 
uncommon, since the greater distance will magnify the result of 
any error or defect in the vehicle's guidance system. If a vehicle 
or parts of a vehicle should fall to earth causing property dam- 
age and personal injury, who will be liable for such damage and 
to what extent? 

When a vehicle weighing thousands of pounds carrying great 
quantities of the most volatile fuels known to man leaves the 
earth it depends entirely for its guidance on an intricate system 
of thousands of precisely designed and engineered parts, both in 
the missile itself and on the ground. The slightest miscalculation 
in the design, manufacture, or function of any single part could 
result in disaster. Should disaster occur what would be the basis 
of liability on which those injured could claim compensation? 
Are there any analogies from which we can draw an answer ? x 



1 Haley, "Space Vehicle Torts," 36 University of Detroit Law Journal 294 
(1959). See also Haley, Space Law and Government 233-273 (1963). Compare, 
McDougal, Lasswell and Vlasic, Law and Public Order in Space 613-620 (1963). 



353 

Major harm, bordering on limited disaster, some day may — and 
probably will — result from the peaceful employment of satellites. 
The nature of the harm may differ from possible nuclear, bacterio- 
logical, or chemical accidents. Nonetheless, within an impact area 
the dangers may be of significant magnitude. Nuclear energy has 
been considered as the propulsion system for the Rover type satellite. 
The Transit-4A satellite launched by the United States on June 29, 
1961, was equipped with an experimental nuclear device (developed 
by the Atomic Energy Commission) which continues to generate 
electricity for navigational transmitters. The Transit-4B also used 
nuclear powered generating equipment. Nuclear energy is considered 
by many to be a natural tool for the exploration of outer space. 2 

Disaster may also threaten from satellites and missile launches 
because of the properties of nonnuclear propellants. It has been 
stated that many such propellants possess extremely toxic qualities, 
that there is little knowledge about antidotes, and that despite safety 
measures, there remains the possibility that serious injury may result 
by reason of an accident at time of launch. 3 

Harm may also result from the uncontrolled return to earth of 
space vehicles and devices, either in the form of the launched vehicle 
or as fragments resulting from collision or in consequence of partial 
combustion caused by transiting through heavy atmosphere. 4 There 
is a pressing need to provide for both safety of operation and to 
create legal rights and remedies ready for use after harms have re- 
sulted. This responsibility confronts both national and international 
policy makers. 

2 Branch and Connor, "Nuclear Safety in Space," 19 Nucleonics 64-68 (April 
1961). Connor, "Aerospace Nuclear Safety," 31 Aerospace Medicine 797-806 
(October 1960). Compare, Libby, "Atomic Energy and Space," in Ramo, ed., 
Peacetime Uses of Outer Space 188, 190-191 (1961). The Snap-3 generator pro- 
vides isotope power for satellites and has a life expectancy of about 40 years. 
Hardy, "Nuclear Liability: The General Principles of Law and Further Pro- 
posals," 36 Brit. Yb. InVl L. 223 (1960). 

3 Reeves, New York Times (Western ed.) February 5, 1963. Major Reeves 
has served as Chief of Experimental Toxicology and Biokinetics of the United 
States Air Force School of Aerospace Medicine. 

4 For an account of the surveillance and recovery in Manitowoc, Wisconsin, 
on September 5, 1962, of a metal object weighing approximately twenty pounds 
constructed of alloy steel and which had been in outer space for a considerable 
period of time, one may consult the statements of the United States represen- 
tative to the U.N. Committee on the Peaceful Uses of Outer Space on Septem- 
ber 14, 1962. The tender of this piece of Sputnik IV to the Soviet delegate was 
rejected at that time. However, later at the request of the Soviet government 
it was turned over to their U.N. mission. The United States, prior to the return 
of the material, had conducted scientific tests to determine its composition. 
U.N. Doc. A/AC.105/PV.14, 56-60. 



354 

It is true, as a careful report has indicated, that the role of law 
may not serve to diminish the physical hazards of disastrous acci- 
dents. But it is "largely the law, supplemented by private arrange- 
ments such as insurance, that determines whether, when and to what 
extent the victims will be compensated and how the burden of com- 
pensation will be distributed among governments, industry and in- 
surers. The problem of devising fair and practicable means of com- 
pensating the victims and distributing financial losses is in large 
measure a legal one; if accidents occur in a foreign country, it be- 
comes in part a political and diplomatic problem as well." 5 

At the present there is a need for a threefold approach to the pro- 
tection of persons and property (both real and personal) from space 
related torts, whether accidental or intentional. In the first place, the 
resource states must enact suitable laws providing adequate protec- 
tion to those who may suffer injury. Secondly, nations generally will 
benefit from entering into express international agreements providing 
for national responsibility for such harms. Such agreements would 
of necessity have to make suitable provision for the torts of a state, 
of groups of states, for those of private persons, and for international 
organizations. 6 Thirdly, after international standards have been 

5 Financial Protection Against Risks of Major Harm in Government Pro- 
grams 1 (March 1963). Compare, International Problems of Financial Protec- 
tion Against Nuclear Risk 1 (1959). If recovery were sought in the national 
courts of a country one legal problem might be the recognition of such a judg- 
ment in the courts of another state. See Nadelman, "Ways to Unify Conflicts 
Rules," in Be Conflictu Legum, editors, Netherlands International Law Review 
354-357 (1962). 

6 On December 24, 1963, the General Assembly of the U.N. unanimously 
adopted Resolution 1962 (XVIII), which contained, among others, the follow- 
ing declarations : 

5. States bear international responsibility for national activities in 
outer space, whether carried on by governmental agencies or non-govern- 
mental entities, and for assuring that national activities are carried on in 
conformity with the principles set forth in the present Declaration. The 
activities of non-governmental entities in outer space shall require authori- 
zation and continuing supervision by the State concerned. When activities 
are carried on in outer space by an international organization, responsibil- 
ity for compliance with the principles set forth in this Declaration shall 
be borne by the international organization and by the States participating 
in it. 

8. Each State which launches or procures the launching of an object 
into outer space, and each State from whose territory or facility an object 
is launched, is internationally liable for damage to a foreign State or to 
its natural or juridical persons by such object or its component parts on 
the earth, in air space, or in outer space. 
For the entire Resolution, see Annex 4, infra, p. 450-452. 



355 

established by express international agreement, there will be a need 
to conform national laws to these standards. 7 

In the United States, existing legislative enactments have failed 
to make provision for any more than nominal damages on the part 
of the national government for extra-hazardous space activities, 
which are carried on at the instance of the government, and which 
may cause great harm to life and property. The 1963 study prepared 
by the Legislative Drafting Fund of Columbia University for the 
National Security Industrial Association has indicated that a mem- 
ber of the public in the United States would have to proceed for 
redress of injuries by way of law suit sounding in tort. It added : 
The outlook for injured members of the public in the wake of 
a catastrophe is uncertain: apart from the problems of proof 
faced by plaintiffs in any tort action, to victims of a catastrophe 
special difficulties would be presented in identifying the actor 
for the injury, proving his liability in a lawsuit, and then finding 
sufficient assets from which a judgment could be satisfied. 

The United States Government would, of course, possess 
sufficient assets to satisfy judgments arising out of any but the 
most cataclysmic of accidents. However, even though the pro- 
grams under consideration [including most space activities] are 
by definition governmental programs, there is considerable doubt 
that an injured member of the public will be able to recover 
damages from, or even to sue, the government. 8 
Nations have a deep interest in the protection of their nationals 
from harm arising from distant places. It has been urged that the 
ultimate ascertainment of responsibility for compensation remains 
a domestic matter. 9 However, as noted above, by international agree- 
ment states may arrive at standards which can be implemented and 
enforced in municipal law. Such problems may also be referred to 
international judicial bodies. 

Factors to be considered at both the national and international 
level endeavoring to protect those likely to suffer harm include : suits 
against a government, sovereign immunity of government, suits 



7 Quadri, "Droit International Cosmique," 98 Recueil des Cours 588, 589-592 
(1959). 

8 Financial Protection, supra note 5, at 7, 10. Compare, Haley, supra note 
1, at 299-300, 303-314; Simeone, "Space— A Legal Vacuum," Military Law Re- 
view, Pam. 27-100-16, 51 (April 1962) ; McCollum, "Tort Aspects of Space 
Technology," 8 Cleveland-Marshall Law Review 292 (1959). 

9 U.N. Doc. A/AC.105/C.2/SR.22, 14. The view was expressed by the repre- 
sentative of France. 



356 

against contractors and suppliers, protection through insurance cov- 
erages, liability of a state, possible liability of a state for private 
activity when authorized, liability of associations of states, liability 
of international organizations, procedures for pursuing claims, and 
legal bases for liability, including nuisance, 10 negligence, 11 fault, 12 
and strict or absolute liability. 13 

2. Deliberations at the United Nations 

Efforts at the United Nations to establish detailed rules of liability 
for space vehicle accidents, including accidents in outer space, have 
considerably clarified expectations as to acceptable space behavior. 
As earlv as 1059, the United Nations Ad Hoc Committee on the Peace- 
ful Uses of Outer Space suggested that the subject of liability for in- 
jury or damage caused by space vehicles was one susceptible of 
priority treatment. It put forward the following subjects for legal 
analysis and consideration: 

First of all there is the question of the type of interest pro- 
tected: that is, the kind of injury for which recovery may be 
had. Second, there is the question of the type of conduct giving 
rise to liability: should liability be without regard to fault for 
some or all activities, or should it be based upon fault? Third, 
should a different principle govern, depending on whether the 
place of injury is on the surface of the earth, in the air space or 
in outer space? Fourth, should liability of the launching State 
be unlimited in amount? Finally, where more than one State 



10 Haley, supra note 1, at 294. 
™Ibid., 295. 

12 This was mentioned by the British representative at the United Nations 
as a possibility among others. V.N. Doc. A/AC.105/C.2/SR.17, S-9. To the 
same effect, U.if. Doc. A/AC.105/C.2/SR.25, 5. See Verschoor, "The Responsibil- 
ity of States for the Damage Caused by Launched Space-Bodies," First Col- 
loquium 103 (1959). 

13 Cooper, "Memorandum of Suggestions for an International Convention on 
Third Party Damage Causes by Space Vehicles," Third Colloquium 141 ; Legal 
Problems of Space Exploration, A Symposium 680. Cooper distinguished be- 
tween liability in space and on the ground. Mankiewicz, "The Regulation of 
Activities in Extra-Aeronautical Space, and some Related Problems," 8 McGill 
Law Journal 209 (1962) ; Haley, supra note 1 at 294; Mankiewicz, "De l'Ordre 
Juridique dans l'Espace Extra-Aeronautique," 5 Annuaire Francaise de Droit 
International 142 (1959) ; Beresford, "Liability for Ground Damage Caused 
by Spacecraft," 19 Federal Bar Journal 254 (1959) ; Legal Problems of Outer 
Space, A Symposium 552 ; Simeone, supra note 8, at 51 ; Verschoor, supra note 
12 at 103 ; Hingorani, "Damage by Satellite," 30 University of Kansas City 
Law Review 216-218 (1962). 



357 

participates in a particular activity, is the liability joint or 

several ? 14 

The discussions at the United Nations have proceeded on the as- 
sumption that international liability for mishaps involving space 
vehicles is governed by international law and the Charter. In draft 
proposals submitted by the United Kingdom, 15 the United States, 16 
and the Soviet Union, 17 this point has been accepted. The United 
States and the United Kingdom have taken the view that space 
activity may also be governed by other international agreements. 
Proposals dealing with international liability have also been sub- 
mitted by Belgium. 18 The many proposals culminated in the adoption 
of Eesolution 1962 (8) (XVIII) on December 24, 1963. 

The importance of the various proposals, the unanimous Eesolution 
of the General Assembly, and national views as to acceptability of 
stated principles require a detailed analysis. In the first place, it 
should be noted that an effort was made by the representative of the 
United States to summarize before the legal subcommittee of the 
U.N. Committee on the Peaceful Uses of Outer Space, the conclusions 
arrived at in that body. In April 1963, he stated that in connection 
with the question of ''liability for space vehicle accidents, there was 
general agreement that launching authorities should be held interna- 
tionally liable for injuries or damage on land, on sea, and in the air 
caused by space vehicles for which they were responsible." 19 This 
is a carefully qualified statement, but it does suggest the existence 
of a legal duty on the part of a state, international organizations, 
and associations of states. It also suggests the responsibility of such 
entities for activities carried on with their permission by private 
persons. It was pointed out that "There was also a consensus of 
opinion that such liability should be incurred without proof of 
fault." 20 It will be noted that no reference was made to liability 



14 V.N. Doc. A/4141, 23-24, Annex 20, infra, p. 472. 

15 V.N. Doc. A/C.l/879, Annex 18, infra, p. 469. 

16 V.N. Doc. A/C.l/881, Annex 10, infra, p. 459. 

17 V.N. Doc. A/AC.105/C.2/L.6, Annex 16, infra, p. 466. 

18 U.N. Doc. A/AC.105/C.2/L.7, Annex 17, infra, p. 468. 

19 V.N. Doc. A/AC.105/C.2/SR.16, 3-^t. The United States recognized this 
principle again in September 1963. U.N. Doc. A/AC.105/PV.20, 18. 

20 Ibid., 4. The Australian delegate subsequently stated that there was "com- 
plete agreement in broad principle that a State launching a space vehicle should 
be internationally liable, without fault, for injury, loss or damage caused by 
the vehicle on the earth or in the air space." V.N. Doc. A/AC.105/C.2/SR.23, 3. 
Compare, Meyer, "Legal Problems of Outer Space," 28 The Journal of Air 
Law and Commerce, 344-346 (1962) ; Lyon, "Space Vehicles, Satellites, and the 



358 

for accidents occurring in outer space. The United States, by accept- 
ing General Assembly Resolution 1962 (8) (XVIII), has thereby 
agreed to a space law principle for outer space as well as for land, 
sea, and air accidents and events. 

The United States, at the close of 1962, had put forward two pro- 
posals on the subject of liability. The first, dated September 11, 
1962, contained specific rules, which if adopted — with modifications — 
would provide an adequate legal regulation of the problem of liabil- 
ity. 21 The second, dated December 8, 1962, was broadly stated and 
somewhat limited in scope. The latter in Article 6 provided: "A 
State or international organization from whose territory or with 
whose assistance or permission a space vehicle is launched bears in- 
ternational responsibility for the launching, and is internationally 
liable for personal injury, loss of life, or property damage caused 
by such vehicle on the earth or in air space." 22 

The United States representative, Mr. Meeker, examined the im- 
port of Article 6 before the legal subcommittee on April 24, 1963. He 
stated that the provision for international responsibility "covered 
the possibility of a Government enlisting the help of a private cor- 
poration or firm, which it might authorize to carry out activities in 
space, subject to continuing Government supervision." 23 He noted 
that pursuant to specific United States legislation, namely, the Com- 
munications Satellite Act of 1962, there had been acceptance of the 
principle of national responsibility for national space activities. 
Since some space activities have been carried out under private 
auspices, this reference was intended to reassure a few states which 
have been of the opinion that international space activities should be 
conducted only by states. This restrictive position is no longer ad- 
vanced by any state, as illustrated by the unanimous vote given to 
General Assembly Eesolution 1962 (5) (XVIII). 24 

Mr. Meeker stated that "The first part of the principle in the 
United States draft was designed to show the international respon- 
sibility of any Government from whose territory or with whose 
assistance or permission space projects were undertaken. The second 



Law." 7 McGill Law Journal 283-284 (1961) ; Financial Protection, supra note 
5, at 70-86; Cooper, Verplaetse, Beresford, von Rauchhaupt, Third Colloquium 
133-136; Beresford and Yeager, "Survey of Space Law," Committee on Astro- 
nautics and Space Exploration, 86th Cong., 1st Sess., 22-26 (1959). 

21 V.N. Doc. A/AC.105/L.5 ; U.N. Doc. A/5181, Annex 9, infra, p. 458. 

22 V.N. Doc. A/C.l/881, Annex 10, infra, p. 459. 

2 3 V.N. Doc. A/AC.105/C.2/SR.20, 12. 

24 Annex 4, infra, p. 450. 



359 

part of the principle stated the idea of financial liability, which was 
also included in paragraph 11 of the Soviet draft. The United States 
draft, however, was more precise since it specified what types of in- 
jury and damage were envisaged and said that responsibility existed 
for such damage or injuries on the earth or in air space." 25 He noted 
that it would be necessary to establish a different rule for outer space 
because of the difficulties involved in applying the doctrine of abso- 
lute liability in that dimension. 26 

The United States has maintained that intricate legal problems are 
involved in the launch, use, operation, and return of space vehicles, 
and that an express international agreement is the preferred process 
for coping with international rights and duties. The scope of legal 
liability may depend on many variables. These include, for example, 
the launch by one country of a space vehicle owned by another 
country, the launch by one country of a space vehicle in the territory 
of another country, and the cooperative launch by two or more 
countries in a third country of a vehicle owned by a fourth country. 
The variables are indeed wide. 27 

The United States has also sought specific agreement as to the 
procedures to be employed in the presentation of claims and as to 
the forum where a state might obtain an interpretation or applica- 
tion of such a convention. With this in mind, the United States sub- 
mitted a draft proposal on liability for space vehicle accidents on 
September 11, 1962. The scope of this draft was limited to personal 
injury and loss of life or property damage occurring on land, sea, 
or in the air. It recognized that states and international organiza- 
tions responsible for the launching of space vehicles should be liable 
internationally for resulting injury, loss, or damage. It accepted 
the rule of absolute liability for this kind of harm on the part of the 
launching entity, but noted that "the degree of care which ought 
reasonably to have been exercised by the person or entity on whose 
behalf claim is made might properly be taken into account." 28 



25 Ibid. The Soviet draft appears infra, p. 466, Annex 16. 

2 «Ibid. Acceptance by the United States of Resolution 1962 (8) (XVIII) has 
signified acceptance of a single rule for earth, airspace, and space situated and 
damages. 

27 The representative of the United Kingdom has called attention to the need 
for a careful analysis of these issues, and has said : "Various combinations of 
interests might therefore be involved in an outer space project and one should 
not think only in terms of a State which owned both the launching apparatus 
and the space vehicle." U.N. Doc. A/AC.105/C.2/SR.25, 3. 

23 U.N. Doc. A/AC.105/L.5 ; U.N. Doc. A/5181, Annex 9, infra, p. 458. 

791 — 405—66 24 



360 

The United States draft further suggested that there was no need 
for a claimant to exhaust local remedies prior to filing a claim, noted 
the applicability of the concept of laches, and referred disputes "re- 
lating to the interpretation or application of the international agree- 
ment on liability in the absence of agreement between the States con- 
cerned upon another means of settlement" to the International Court 
of Justice. Finally, presentation of claims was to be accomplished 
internationally by dealing with the state or states or international 
organization responsible for the launching of the vehicle which 
caused the injury. 29 

The representative of the United Kingdom also held the view in 
May 1963, that there was general agreement among the members of 
the legal subcommittee that "liability should be absolute." 30 It was 
pointed out that it would be possible for several states and interna- 
tional organizations, as well as private persons, to engage in coopera- 
tive space efforts, and that this presented problems affecting the 
assignment of liability. Several possible criteria were mentioned for 
the determination of liability, such as responsibility for launch, effec- 
tive control over subsequent operation, and ownership. However, it 
was suggested that the need to arrive at a rule for the apportionment 
of liability would not modify the need to establish a rule of absolute 
liability. 31 

The British representative, after noting that the United States 
favored imposing liability on the launching entity, observed that it 
was "doubtful whether that formula would work satisfactorily in 
the case where an international organization launched a space vehicle 
for a State which was not a member of the organization, but the or- 
ganization itself had no control over the subsequent operation of the 
vehicle." 32 The United Kingdom also pointed out that the United 
States view (that liability was to be assigned against the state of 
launch), might not be appropriate where the state whose "territory 
was used for the launching was merely providing a convenient 
launching site and was not in any way concerned with the vehicle's 
subsequent operation." 33 These comments emphasized the possibility 



29 Ibid. If such matters were to come before the World Court for adjudica- 
tion, the claim would be presented by a nation-state or perhaps by an interna- 
tional organization. 

30 U.N. Doc. A/AC.105/C.2/SR.25, 5. 
3i Ibid. 

32 Ibid., 4. 

33 Ibid. 



361 

that operation as well as launch ought to be weighed in determining 
liability. 34 

The British representative also called to the attention of the legal 
subcommittee the language of paragraph 11 of the Soviet statement 
of general principles, which made provision that a state undertaking 
activities in outer space bore international responsibility for such 
conduct. 35 It was thought by the British representative that such a 
formula could be construed to mean that a launching state was re- 
sponsible even when it had no control over the vehicle's subsequent 
operations or where its participation was limited to making its ter- 
ritory available for a launch. It was also pointed out by the British 
delegate that the Soviet formulation might exclude an international 
organization from responsibility for space vehicle accidents, but that 
the draft could be interpreted to mean that "the States composing 
the organization should always be held to be directly liable for any 
injury or damage caused by a space vehicle." 36 It was noted that 
prima facie it appeared that the international organization might be 
liable in the first instance, but that under the constitution of any in- 
ternational body it might be possible to provide that the members 
would be obliged to discharge the liability of the organization. 

The inadequacy of the Soviet draft principle, despite its recogni- 
tion of the need for a structured legal regime in outer space, may be 
observed by comparing it with the United States and Belgian pro- 
posals. 



34 The French representative also noted that space activities might include 
launch, operation, and use by states or associations of states. In his view it 
was essential that such entities "should accept liability for the injuries which 
might arise from those activities." U.N. Doc. A/AC.105/C.2/SR.22, 14. 

35 The Soviet draft, like the British draft, has dealt only with broad prin- 
ciples. The Soviets have advanced the view that "A State undertaking activ- 
ities in outer space bears international responsibility for damage done to a 
foreign State or to its physical or juridical persons as a result of such activ- 
ities." U.N. Doc. A/AC.105/C.2/L.6. The British draft has suggested that space 
activity should be conducted "with due regard to the interests of other States." 
U.N. Doc. A/G.l/879, Annex 18, infra, p. 469. 

39 U.N. Doc. A/AC.105/C.2/SR.25, 4. The Soviet representative in September 
1963, retreated from earlier Soviet proposals which would have sought to re- 
strict space activities to states. In commenting on the conduct of activities in 
space by private companies, under the supervision or control of a government, 
it was stated : "The Soviet delegation considers it essential to point out that 
in this field it would be possible to consider the question of not excluding from 
the declaration possibility of activity in outer space by private companies, 
on the condition that such activity would be subject to the control of the ap- 
propriate State, and the State would bear international responsibility for it." 
U.N. Doc. A/AC.105/PV.22, 37. Compare Resolution 1962 (XVIII ) . 



362 

The Belgian delegation to the United Nations submitted a detailed 
analysis dealing with the Unification of Certain Rules Governing 
Liability for Damage Caused by Space Vehicles. 37 This draft dealt 
systematically with five phases of the problem: definitions, designa- 
tion of states subject to liability, nature of the liability, extent of 
liability, and procedures for bringing action for liability. 

The Belgian proposal made provision for extending compensation 
for damage to movable and immovable property and to natural and 
legal persons. Damage was understood to mean any loss for which 
compensation may be claimed under the national law of the injured 
person, "including judicial and legal costs and interest." 38 The pro- 
posal made no provision for damage "caused on the territory of the 
State where the launching of the device or devices takes place, the 
State whose flag the device or devices fly or the State or States claim- 
ing ownership or co-ownership of the device or devices." 39 Territory 
of a state was defined to include only land areas, territorial and ad- 
jacent waters, and ships flying its flag and aircraft registered to it* 
Presumably the proposal would cover events taking place on the 
high seas, in non-national airspace, and in outer space. 

Pursuant to Article 2 of this proposal, liability would be limited 
to a state or groups of states, and only a state might be a claimant 
although the latter would be permitted to act on behalf of injured 
nationals or residents. The claimant state would be authorized to. 
proceed against the state on whose territory the launch took place,. 
or the state whose flag was flown, or the state or states claiming 
ownership or co-ownership of the space device. In this connection it 
was provided that there could not be "joint liability or solidarity." 40, 
The following provision was made as to liability : 

The occurrence of the event causing the damage shall entail 
an obligation to give compensation once proof has been given 
that there is a relationship of cause and effect between the dam- 
age, on the one hand, and the launching, motion or descent of all 
or part of the space device on the other hand. 

The presence or absence of a relationship of cause and effect 
shall be determined in accordance with the national law of the 
person injured. 41 



37 U.N. Doc. A/AC.105/C.2/L.7 ; U.N. Doc. A/AC/105/12; Annex 17, infra* 
p. 468. 
ss Ibid. 

39 Ibid. 

40 Ibid. 

41 Ibid. 



363 

With regard to the extent of liability the proposal called for the 
application of the "ordinary law of the country of the person in- 
jured." 42 

Claims for liability were to be brought initially through diplomatic 
channels, subject to a statute of limitations of one year. If the state 
against which the claim had been presented failed to arrive at a 
"decision considered satisfactory by the plaintiff State within six 
months, the latter shall be entitled to take the claims for compensa- 
tion before the International Court of Justice." 43 The proposal 
established a six months statute of limitations applicable to these 
actions before the World Court. 

The Belgian delegate to the legal subcommittee explained the pro- 
posals in May 1963. He asserted that damage occurring on the ter- 
ritory of the launching state or on the territory of the flag state or 
on that of the state or states claiming ownership of the device was 
not of an international character. In this connection he noted that 
"the States concerned would have to settle any problems that arose 
through bilateral and not multilateral channels." 44 

It was explained that the Belgian proposal related to collisions 
between space devices, and apparently also between such devices and 
aircraft, for it was stated that "his delegation did not accept the 
idea of a space boundary and thought that space law should apply 
to space devices whether moving in controlled air space, in uncon- 
trolled air space or in outer space ; otherwise a space device could be 
subject to either air law or space law, depending on the altitude at 
which it was moving." 45 Damages were to be measured by the na- 
tional law of the injured person so that compensation would reflect 
only particular national economic and social factors. 

It was his view that Article 2 of this proposal, dealing with the 
liability of states, would not preclude private persons from launching 
and orbiting space devices. However, it was expected that such 
activity would be subject to prior authorization by the state from 
which the launch might take place. On this basis the launching 
state would be expected to be liable for both private and public harms 

**Ioid. 

43 Ibid. Pursuant to the proposal each state would be obliged to conform to 
the decision of the Court within three months after it had given its judgment. 
Further, there could be no tolling of the statute of limitations. There could 
be a joinder of actions under certain circumstances. Presumably the claimant 
state would be able to make claims on behalf of its residents as well as for 
itself. 

44 U.N. Doc. A/AC.105/C.2/SR.25, 6. 
«/&«*., 7. 



364 

to others. There could be one exception to the right on the part of 
the injured person (represented by a state) to bring a claim against 
only one state and this would be where "several devices for which 
different States were responsible simultaneously caused damage to 
third persons." 46 

In commenting on the nature and extent of national liability, the 
Belgian representative noted that harm might result not only from 
the descent of a space device but also that it might be the product of 
the launching or motion of the device. The following example was 
given : "An aircraft might be damaged because its crew had tried to 
avoid a collision with a space device or because it had been struck 
by a space device or part of a device, even though the latter itself 
disintegrated and caused no direct damage." <7 It was also his view 
that the nature and extent of liability ought to be based on the na- 
tional law of the person injured rather than on an internationally 
accepted definition "which could only be an arbitrary and unsatis- 
factory common denominator." 48 

During the April-May 1963 meeting of the legal subcommittee of 
the Committee on the Peaceful Uses of Outer Space, many delega- 
tions compared or commented on the matter of liability as contained 
in the United States and the Soviet statements of principles and on 
the United States and Belgian proposals relating to detailed rules. 
The Indian representative noted the existence of "a parallel" be- 
tween Article 6 of the United States principles and Article 11 of the 
Soviet principles. 49 He held the view that Article 7 of the Soviet 
statement of principles, which urged that launching of space vehicles 
be limited to states only, was met by the terms of Article 6 of the 
United States statement of principles, since the latter sought to 
avoid the possibility of irresponsibility on the part of private launch- 
ers. In order to further clarify the issue, however, it was his view 
that provision might be made that space vehicles should not be "op- 
erated by individuals or corporations except with a license granted 
by the State of which they were nationals and that the State should 
give full clearance before each launching." 50 

46 Ibid. 
* 7 Ibid., 7. 

48 Ibid. The British representative had previously called attention to the 
need to arrive at a decision how "liability should be assigned in cases where 
more than one State or organization was involved and whether liability should 
be limited in amount." U.N. Doc. A/AC.105/C.2/SR.17, 9. 

49 U.N. Doc. A/AC.105/C.2/SR.28, 5. 

50 U.N. Doc. A/AC.105/C.2/SR.22, 9. The Soviet view that only states might 
engage in space launches had been subjected to much criticism on the ground 
that it sought to impose a single and preferred social and economic system for 
space exploration. 



365 

General agreement was expressed that privately launched space 
vehicles should be required to obtain national licenses prior to launch. 
The Canadian representative observed that in order to "guard against 
irresponsible activities, the operation of space craft by private in- 
dividuals, corporations or organizations should be explicitly forbid- 
den save under license from the State of nationality. That would 
satisfy the Soviet Union's rightful concern that States should bear 
final responsibility for the space activity of national and interna- 
tional organizations, and a valuable principle, applicable to both 
structures of society, could be drafted." 51 

A comparison was made by the Czechoslovakian delegate between 
the United States and Belgian proposals. In noting that the United 
States proposal did not cover events taking place in outer space, he 
failed to acknowledge the view of the United States that this subject 
should be dealt with separately. 62 Regarding the Belgian proposal, 
he seemingly failed to realize that it did make provision for collisions 
in outer space when he told the subcommitte that this proposal did 
not cover damage caused by one space vehicle to another in outer 
space. 53 

On the subject of liability he complained that neither draft con- 
sidered "damage cause by explosions or other experiments conducted 
at very high altitudes." 54 These problems, of course, had been made 
the subject of numerous discussions at the United Nations wherein 
the United States had made known its policy to consult with 
COSPAR prior to injecting possibly dangerous or experimental 
materials into outer space. 55 While acknowledging that both drafts 
took into account the principle of absolute liability, he stated that 
this was not in accordance with the "current practice of States as 



51 U.N. Doc. A/AC.105/C.2/SR.21, 6. This view was supported by Japan, 
which also held that licenses should be issued only to nationals. U.N. Doc. 
A/AC.105/C.2/SR.22, 11. The United Kingdom suggested that licensing might 
be accompanied by state supervision of private launches, since, "the underlying 
principle was that the nature of space operations required a continuing state 
of responsibility for them, whatever arrangements might be made between a 
State and private operators. The United States Communications Satellite Act 
(1962), expressed in very concrete form the concepts of governmental permission 
and governmental supervision." U.N. Doc. A/AC.105/C.2/SR.24, 12. 

52 Supra, p. 359. 

5S U.N. Doc. A/AC.105/C.2/SR.25, 9. Compare Resolution 1962 (XVIII). 

54 Ibid. For the 1963 Moscow Treaty, Annex 19, infra, p. 470. 

55 Supra, pp. 219-245, 303-318. Compare Article 6 of the Soviet draft declara- 
tion, Annex 16, infra, p. 466. 



366 

illustrated by Articles 20 and 21 of the Warsaw Convention 56 [for 
the Unification of Certain Rules Relating to International Transpor- 
tation by Air, 1929, governing liability of air carriers to passengers 
and to cargo consignees], nor with the provisions of the Brussels 
Convention on liability of nuclear ships [European Convention on 
Nuclear Damage] " 57 It should be noted, however, that the Rome 
Conventions for the Unification of Certain Rules Relating to Damage 
Caused by Aircraft to Third Parties on the Surface, of 1933 and 
1952, have adopted the rule of liability without fault. In commenting 
on this aspect of liability, Beresford has written that since "con- 
tributory negligence is a defense under article 6, it is more accurate 
to say that the causing of ground damage creates a conclusive pre- 
sumption of negligence." 58 Hingorani, on the other hand, considers 
the European Convention on Nuclear Damage to be inadequate as an 
analogy for liability for space activity. He has said that one may 
not receive "any guidance from the European Convention on Nuclear 
Damage, where liability is limited, because it is not a universal con- 
vention and is fixed arbitrarily." 59 



56 The Warsaw Convention, 49 Stat. 3000, T.S. 876. The United States ratified 
the Convention on July 31, 1934, with one reservation. Articles 20 and 21 
excuse the carrier from liability if it can prove that all necessary measures 
were taken to avoid damage or in the alternative that it was impossible for 
it to take such measures. Liability on the part of the carrier was excused re- 
specting the transportation of goods and baggage if there were a showing that 
there was a pilot, handling, or navigational error and in all other respects 
the carrier had taken all necessary measures to avoid damage. Contributory 
negligence could also be a complete or partial defense. Under the Hague Pro- 
tocol of 1955, the carrier's immunity from liability was restricted by eliminat- 
ing the defenses of error in piloting, handling of the aircraft, or navigating. 
In the Protocol the following language no longer appeared : "in all other re- 
spects he and his agents have taken all necessary measures to avoid the 
damage." An analysis of the Warsaw Convention, The Hague Protocol, and 
international limitation of liability relating to aircraft is contained in the 
addresses of Lissitzyn, Calkins, and Metzger at the 1962 annual meeting of 
the American Society of International Law. Proceedings of the American 
Society of International Law 115-132 (1962). 

57 U.N. Doc. A/AC.105/C.2/SR.25, 9. 

58 Beresford, "Principles of Spacecraft Liability," Third Colloquium 156, 
footnote 5. This amounts to "absolute liability on the proof of damage * * *" 
Simeone, supra note 8, at 53. Compare, Meyer, supra note 20, at 344. 

59 Hingorani, supra note 13. at 217. He has added that limitation of liability 
requires that there be an adequate means of assessing it, and that perhaps 
"future events may evolve a method of fixing liability based on weight or manu- 
facturing cost of the satellite or even some arbitrary figure as fixed among 
nations." Ibid., 217. 



367 

The Czech representative, without noting the differences between 
the Warsaw Convention of 1929, as modified at The Hague in 1955, 
and the Rome Conventions of 1933 and 1952, did recognize that liabil- 
ity provisions relating to air transport (as well as maritime trans- 
port) were not necessarily applicable to damages resulting from 
spacecraft accidents. In his view, states might be relieved of liability 
either partially or fully if damage resulted from the collision of a 
space vehicle with a meteorite, but suggested that responsibility and 
liability would apply to a state for causing harm by means of an 
explosion in space or by means of launching an uncontrollable object. 
Such conduct involved "harmful acts" 60 and liability should be that 
of states and not other launching entities. In this way, claims for 
harms should be accomplished by means of direct negotiations be- 
tween the state within which the damage was caused and "the State 
causing the damage." 61 He was critical of the terms contained in 
the United States and Belgian drafts making provision for ultimate 
recourse to the World Court in view of the fact that the "Court's 
jurisdiction would not necessarily be recognized by all States." 62 

The delegates from a number of states expressed views on the pro- 
posals contained in the several drafts. At the beginning of the dis- 
cussions, the Austrian representative stated that the United States 
had put forward "a useful proposal." 63 In summarizing the work 
of the legal subcommittee, he stated that there had been unanimity 
that the draft declaration of basic principles should make provision 
that "States were liable for damage caused by space vehicles." 64 
The Italian representative noted that states with limited space re- 
sources should be induced to participate in the space programs of 
international organizations and these organizations would be respon- 
sible for harms caused. The liability of each participant state would 
then be apportioned on the basis of the "actual participation of a 
given country in a project." 65 The Canadian representative expressed 
the view that a state, states acting cooperatively, and international 
organizations engaging in space activities must assume responsibility 
for their conduct, and that "explicit reference might be made to the 
principle of the liability of States for internationally injurious acts 



60 U.N. Doc. A/AC.105/C.2/SR.25, 9. 

6i Ibid. 

**Ibid., 10. 

63 U.N. Doc. A/AC.105/C.2/SR.16, 6. 

6* U.N. Doc. A/AC.105/C.2/SR.28, 3. 

65 U.N. Doc. A/AC.105/O.2/SR.20, 6. 



368 

of their nations or national organizations." 66 Albania subscribed to 
the view that a state should be considered liable for damage caused 
by it. 67 Argentina supported the view that states or international 
organizations "authorizing or carrying out the launching [of space 
craft] was internationally liable." 68 

After taking note of the differing views as to liability to be found 
in divergent national legal systems, the Hungarian representative 
stressed the view that basic space principles should be accepted inter- 
nationally prior to the elaboration of rules on liability. He limited 
his observations to a single cause of liability, namely, a collision 
affecting a space vehicle or its crew. He urged that in principle, 
liability should be imposed on the launching party, and that each 
of the "parties concerned should assume liability for the damage it 
had sustained, with the following exceptions: (1) if one of the 
parties had undertaken the launching with a view to pursuing an 
unlawful activity, or if the space vehicle or object in question had 
exercised an unlawful effect, that party should assume full liability; 
(2) if one of the parties produced evidence that damage had been 
caused through the wilful act or gross negligence of the other party, 
the latter should also assume liability for the damage caused to the 
former." 69 Following the views expressed by other members of the 
Communist bloc, it was suggested that disputes be resolved by pacific 
means pursuant to Article 33 of the U.N. Charter, with a preference 
for arbitration by mutual consent. Reference to the International 
Court of Justice was not regarded as a satisfactory procedure. 70 The 
Czech representative charged that some states sought to engage in 
"espionage" and unpermitted experiments in outer space and that 
it was their intent to refuse to accept liability for damages caused 
by such activities. 71 He also stated that existing legal norms probably 
covered damages caused by spacecraft on land, in the air, and on the 



66 77.2V. Doc. A/AC.105/C.2/SR.21, 6. The Soviet delegate in urging initially 
that space activities be conducted by states, noted that the states which held 
that private bodies be permitted to use outer space had taken the view that 
"the State concerned should have ultimate responsibility." U.N. Doc. 
A/AC.105/C.2/SR.22, 5. 

67 U.N. Doc. A/AC.105/C.2/SR.24, 3. 

68 U.N. Doc. A/AC.105/C.2/SR.24, 10. Argentina also expressed the view that 
"the answers to such questions as the class of interests protected, the type 
of activity giving rise to liability and other connected problems would vary 
with the particular legal system applied in analysing them." Ibid. 

69 U.N. Doc. A/AC.105/C.2/SR.26, 5. 

70 Ibid., 6. 

™ U.N. Doc. A/AC.105/C.2/SR.28, 7. 



369 

sea but that the "question of liability for damage caused in outer 
space had not been regulated * * *" 72 

During the April-May 1963 discussions in the legal subcommittee, 
progress was made in complying with the mandate of the General 
Assembly contained in Kesolution 1802 (XVII). Part A of the 
Resolution requested that urgent attention be given to the further 
"elaboration of basic legal principles governing * * * liability for 
space vehicle accidents * * *." 73 It was not, however, possible to ar- 
rive at a consensus on all points raised. 

Progress was made in establishing a consensus that harms caused 
by space vehicles should be compensated, particularly if the effects 
were experienced on the surface of the earth, including the oceans, 
and in the airspace. There was not the same consensus respecting 
harms taking place in outer space. 

Liability was held to pertain principally to states, although when 
space activities were conducted by groups of states or by interna- 
tional organizations the liability became that of the responsible body. 
A state was thought to be responsible for damages caused by private 
entities having been authorized or permitted to launch a space vehi- 
cle from its territory. It was generally agreed that private space 
activities should be conducted only after having been licensed or 
registered by a state, and that the licensing state should undertake 
inspection and identification procedures prior to launch to insure 
the maintenance of adequate safety standards. 

It was suggested that the state of launch need not be the only re- 
sponsible party, in that liability might also result from operation 
and use of a space vehicle, and that many combinations as to launch, 
operation, and use might be expected. Where groups of states and 
international organizations engaged in launch, operation, or use, it 
was suggested that liability might be apportioned pursuant to express 
agreement and that international organizations might provide, in 
their own constitutional structure, for a formula for sharing pay- 
ments of damages, but that states either as principals or as under- 
writers might ultimately be held accountable for the payment of 
damages. 

There was general agreement that liability for harms resulting on 
the ground, on the sea, and in airspace should be strict or absolute, 
assuming the nonexistence of any intent to cause harm. However, 
in the event of collision between spacecraft — and probably between 
spacecraft and aircraft — some doubt was expressed as to the appli- 



72 IMd. 

73 Resolution 1802 ( XVII ) . Annex 3, infra, p. 446. 



370 

cability of the rule of absolute liability. While there was apparent 
agreement that an international standard ought to be established, the 
view was also expressed that states under their own domestic law 
should establish the monetary limitations on such liability. The need 
for an express international agreement establishing both the prin- 
ciple of absolute liability and the monetary limits of national liability 
was generally conceded. 74 No figure as to the limits of such liability 
was mentioned. 

There was no agreement as to the legal or political procedures 
whereby claims for damages might be litigated or negotiated. The 
states of the Free World generally favored the use of existing legal 
institutions such as the International Court of Justice or interna- 
tional commissions. The members of the Communist bloc expressed 
their long standing opposition to regularized legal institutions, par- 
ticularly the World Court, and suggested that settlements be nego- 
tiated. The members of the Communist bloc also asserted the need 
to establish a broad statement of principles, whereas the Free World 
states regarded the subject of liability for damages as being a very 
practical one capable of supporting detailed rules, and, in fact, re- 
quiring the early establishment of express provisions. 75 

3. Communist Bloc Views 

The views put forward in the legal subcommittee of the U.N. Com- 
mittee on the Peaceful Uses of Outer Space have found general 
support in current legal literature. However, it should be noted that 
the academic literature coming from the Communist bloc countries 
is not always in agreement with the views expressed in the Free 
World. Soviet interest in the matter of liability has been incidental 
until quite recently, and early Soviet views were concerned almost 
entirely with such issues as sovereignty and security. 76 



74 In the absence of such an agreement, claims against the United States 
for an extraterritorial or foreign catastrophe would be subject to existing law. 
See Financial Protection, supra note 5, at 42-47. Under existing international 
law, an international tribunal could "hold the United States liable to a state 
whose nationals were injured by its activity, whether this liability were pred- 
icated on a theory of absolute liability or one which entailed a greater balanc- 
ing of interests." Ibid., 85-86. 

75 Discussions under the auspices of the U.N. Committee on the Peaceful 
Uses of Outer Space were conducted in Geneva during March 1964. 

76 Survey of Space Law, supra note 20, at 32-33. Compare, Lipson, Outer 
Space and International Law 12-21 (195^). Crane has noted instances of Soviet 
concern in Soviet publications dating from 1956 for alleged damages caused 
on the ground by space vehicles. He has also noted Soviet contentions that 
damages have been caused by the nuclear contamination of space, copper 



371 

Korovin, writing in 1959, took passing note of the problem of 
liability. After observing that launches up to that time had been 
"solely under the auspices of governmental bodies * * *" he asserted 
that "full responsibility for eventual damage lies with the Govern- 
ment concerned in the event of personal or property losses for citizens 
of foreign countries." 77 In this connection he held that "all uni- 
versally accepted rules of international law (inadmissibility of the 
use of force in solving international disputes, noninjury of foreign 
citizens, and their property, governmental responsibility for the 
activities of their representatives, etc.) apply to the Cosmos as 
well." 78 

The Polish author, Zylicz, also assumed that civil liability would 
be related to launches by states, or by international organizations, 
and that "the states or the competent international organizations 
should in this case be held responsible * * *" i.e., liable for damages. 79 
Another Polish author, Machowski, has examined several of the im- 
portant questions of liability for injury or damage from unmanned 
space vehicles. He has noted the possibility of collisions between 
space vehicles in outer space, of interference between spacecraft or 
disintegrating parts with aircraft in airspace, and of damage to 
persons or property on land or on the sea. It was his view that the 
injured party had a right against the launching state. 80 His assump- 
tion is also that launched space vehicles would be state owned and 
considered that under international law the right to launch must 
be subject to the duty to pay compensation for resulting injuries. 
His analysis goes no further than enunciating the right and duty re- 
lationship. 

Several American analysts have provided some insight to this 
Soviet view of liability. Whelan has stated that the Soviet writers 



needles, spent satellites, interference with communications, arbitrary weather 
control, and harms caused by "violation of the principles of peaceful co-ex- 
istence governing the demilitarization of outer space." Crane, "Soviet Attitude 
Toward International Space Law," 56 A.J.I.L. 707 (1962). Compare Kucherov, 
"The USSR and Sovereignty in Outer Space," Bulletin, Institute for the Study 
of the USSR 25-33 (February 1965). 

77 Korovin, "International Status of Cosmic Space," International Affairs 
(Moscow) 56 (January 1959) ; Legal Problems of Space Exploration, A Sym- 
posium 1067. 

™Ibid., 1070. 

79 Zylicz, "Some Problems of Astronautical Law," Revue Generale de 
Droit International Public 663-664 (October-December 1958) ; Legal Problems 
of Space Exploration, A Symposium 1162. 

80 Machowski, "The Legal Status of Unmanned Space Vehicles," Second 
Colloquium 117; Legal Problems of Space Exploration, A Symposium 1211. 



372 

have accepted the principle that a state is liable for personal and 
material damages caused by space vehicles because the same principle 
prevails in Soviet domestic legislation for damages caused by Soviet 
vehicles in their national airspace. 81 At the time his conclusion was 
reached, Article 78 of the Soviet Air Code 82 and Article 404 of the 
Soviet Civil Code governed such liability, yet claimants were denied 
damages presumably because of their intentional conduct or gross 
negligence. Whelan therefore speculated that it was conceivable the 
Soviets would "accept full responsibility of the state for damages 
caused by its outer space vehicles," 83 but also suggested that the 
reciprocal application of this view might be limited by the nature 
of the conduct of a claimant. Basing his interpretation on a 1961 
article by Korovin, 84 Whelan considered that Soviet acceptance of 
liability might be contingent upon whether the spacecraft of the 
claimant state had been previously engaged in civilian and peaceful 



81 Whelan, "Soviet Attitude Toward International Law and Outer Space," 
in Soviet Space Programs: Organixation, Plans, Goals, and International Implica- 
tions, 87th Oong., 2nd Sess., 209 (1962). 

82 Section 78 of the August 7, 1935 code provided : "Any institution, enter- 
prise, organization, or person exploiting a civil aircraft shall be liable, under 
the laws of the Soviet Union * * * to repair damages caused by death or 
bodily injuries to passengers during the takeoff, flight, and landing, as well 
as damages caused by injuries to property or persons not carried by aircraft, 
unless it is proved that the injury occurred as a consequence of the intent 
or gross negligence of the injured person himself." Air Laws and Treaties 
of the World, Committee on Science and Astronautics, 87th Cong., 1st Sess., 
1318 (1961). Significant changes were made in 1962 Soviet domestic legisla- 
tion. According to Crane "Article 90 of the 1962 U.S.S.R. Civil Code provides 
for liability for injury resulting from extra-hazardous activities unless caused 
by force majeure (similar to the common-law concept of 'act of God') or by 
the intent of the injured party. Article 101 of the 1962 U.S.S.R. Air Code, 
on the other hand, provides for liability regardless of force majeure, although 
in cases of force majeure there is no liability where there is intent or gross 
negligence on the part of the injured." "The principal pertinent changes in 
the 1962 codes are the elimination of gross negligence as a defense in Art. 90 
of the U.S.S.R. Civil Code and the addition of gross negligence as a defense 
for cases of force majeure only in Art. 101 of the U.S.S.R. Air Code." Crane, 
supra note 76, at 709 and footnote 84. 

83 Whelan, op. cit., 210. Crane has concluded that after the amendments 
"an analogy with Soviet domestic law would support absolute liability for 
damage caused by Soviet space vehicles." Crane, supra note 76, at 709. Com- 
pare Pepin, "Damage to Third Parties on the Surface Caused by Space 
Vehicles," Third Colloquium 132. 

84 Korovin, "Space Exploration and International Relations, A Discussion," 
International Affairs (Moscow) 61-62 (June 1961). 



373 

pursuits rather than those of an "aggressive" nature. 85 This implies 
that if a claim were filed by a state against the Soviet Union for 
damages caused by a Soviet space vehicle, the Soviet Union would 
take into account its interpretation of the nature of the space activ- 
ities of the claimant state in determining if it would concede 
liability. 86 

It is clear that the Soviets prefer the process of negotiation to 
the use of legal institutions in resolving international disputes since 
the former makes it possible for the country to veto any previously 
accepted agreement fixing the existence and amount of liability. 
Crane has pointed out that "The significance of this emphasis on 
dispute-settlement will depend on the extent to which the problem of 
damages has been integrated into over- all Communist global strategy, 
just as has every other problem and area of Soviet space law." 87 

4. Free World Views: Individuals 

By contrast, the Free World publicists have been interested in the 
development of a series of substantive legal rules having applicability 
to practical space situations. The typical approach has visualized a 
comprehensive legal order for space activities somewhat paralleling 
existing air and sea practices as regulated by custom and interna- 
tional conventions. Typical of this approach have been the suggestions 
of Jenks, who has taken into account a comprehensive list of situa- 
tions dealt with by conventional law. He has sought to relate such 
responses to space law. Thus, he has suggested, in so far as the mat- 
ter of liability is concerned, that benefit might be derived from noting 
possible analogies to the provisions of the Rome Convention of 1952 
on Damage Caused by Foreign Aircraft to Third Parties on the Sur- 
face, to the International Code of Signals, to the International Colli- 
sion Regulations annexed to the International Convention for the 
Safety of Life at Sea, and to the Navigation Code of the Air consti- 

85 Whelan, op. cit., 210-211 ; Crane, supra note 76, at 708-709. 

86 Crane concurs with Whelan's conclusion that the Soviets may additionally 
require that the problem of return of space vehicles and personnel be related 
to liability. According to Crane "it is not clear whether the Soviets consider 
that the right of a nation — specifically the U.S.S.R. — to the return or recovery 
of its spacecraft should be made conditional upon the acceptance by that 
nation of liability for injury or damage caused by such spacecraft, or whether, 
to the contrary, the acceptance of liability should be made contingent upon 
recognition by the other countries of a duty to return the vehicle." Crane, 
supra note 76, at 708. 

87 Crane, supra note 76, at 710. However, in General Assembly Resolution 
1962 (XVIII) of December 24, 1963, the Soviets were able to agree to a state- 
ment of principles acceptable to the United States. See Annex 4, infra, p. 
450. 



374 

tuted by the annexes to the International Civil Aviation Conven- 
tion. 88 

Western writers, who generally emphasize the nature of the activ- 
ity rather than the place of its occurrence, have sought to clarify 
such problems as: the basis or bases for liability in the event of 
space activity damage, 89 whether liability should be imposed on those 
who have launched space devices or whether it should extend beyond 
the factor of launch to operation and use, 90 whether such form of 
liability as may be agreed on (based on the standard of strict or 
absolute liability, or fault, or negligence, etc.) should be primarily 
that of a state, association of states, or international organization, 91 

88 Jenks, "International Law and Space Activities in Space," 5 Interna- 
tional and Comparative Law Quarterly 105 (January, 1956) ; Legal Problems 
of Space Exploration, A Symposium 38-39. 

89 Haley, supra note 1, at 296. Hingorani, supra note 13, at 214. Simeone, 
supra note 8, at 52. Mankiewicz, supra note 13, at 209. Verschoor, supra 
note 12, at 103. Vallado, "The Law of Interplanetary Space," Second Col- 
loquium 163. Beresford, supra note 58, at 153-155. Cooper, supra note 13, at 
143. The foregoing have been in agreement that the standard of strict liability 
should apply to damages occurring on the ground, on the sea, and in airspace 
as a result of space activities. The rationale has been that at the present time 
space activities constitute extrahazardous dangers. Wright has supported this 
result with the maxim sic utere tuo ut non alienum laedas, and has written 
that states "must prevent the launching of missiles or satellites which might 
land in foreign territory or on the high seas, or, alternatively, assume full 
responsibility to repair damage to other states consequent upon such landing." 
Wright, "Subversive Intervention," 54 A.J.I.L. 528 (1960). This view is sup- 
ported by holdings in the Trail Smelter Case, 1941, U.S. Arbitration Series 
36, 35 A.J.I.L. 684 (1941), and in the Corfu Channel Case (Merits), 1949, 
/. C. J. Reports 4, 22. Compare Briggs, The Law of Nations 310, 2nd ed., 
(1952), McDougal and Schlei, "The Hydrogen Bomb Test in Perspective, 
Lawful Measures for Security," 64 Yale Law Journal 682 ff. (1955), Regala, 
"Legal Problems Arising from the Use of Unmanned Earth Satellites," 33 
Philippine Law Journal 645 (1958), Schachter, "Comments," 1958 Proceedings 
of the American Society of International Law 247. 

90 Verschoor, "Observations on Comparing the Responsibility for Damage 
>y Space Craft and that Caused by Nuclear Installations and Nuclear Powered 
Ships," Fourth Colloquium 333 (1963). It was noted that the operator in most 
instances would be a state. The Davies draft takes note that where a col- 
lision takes place in outer space, the operating state (as distinguished from 
the launching or state responsible for launch) might reasonably be required 
to bear its own loss. Davies Draft Code of Rules on the Exploration and 
Uses of Outer Space 16. Compare the statements made by the representative 
of the United Kingdom to the legal subcommittee. Supra, p. 360-361. 

91 Cooper, supra note 13, at 144. Cooper assumes that states will either launch 
or authorize the launching of space vehicles. Hingorani, supra note 13, at 216, 
also believes that the launching state must assume liability. Rivoire, "Design 
for a Law of Space," First Colloquium 101, has advanced the view that opera- 



375 

whether the same standard should be applied to events occurring on 
the ground, on the sea, in the airspace or in outer space, 92 the special 
problem of collision of spacecraft in outer space, 93 the nature of acts 
or events constituting damage, 94 limits, if any, on the amount of dam- 

tions might be conducted by a Space Agency, and that it would be liable for 
damages under certain conditions. Regala, supra note 89, at 645. Machowski, 
supra note 80, at 117, has asked if the doctrine of sovereignty would prevent 
national liability. Presumably it could be one of the purposes of an inter- 
national convention to eliminate such a defense. According to Cooper "it 
seems doubtful whether launching States will agree both to waive sovereign 
immunity and to consent to be sued in foreign courts." Ibid. The UN dis- 
cussions have been based on the concept of international responsibility. 
Supra, pp. 352ff. 

92 Cooper has urged the acceptance of the standard of absolute liability 
on the part of the launching state for damage on the surface and in air- 
space. However, he would apply the standard of negligence to damage in 
outer space. Supra note 13, at 134. Beresford has noted also that "proof of 
negligence is apt to be very difficult. Not only may the necessary evidence 
be complex and technical, but it may be known only to the Government, and 
protected by rules of military security." Supra note 58, at 153. Thus he 
supports the view that "liability without fault for personal injury and prop- 
erty damage to third parties on the ground" should be accepted. Ibid., 155. 
However, this does not take into account damages to spacecraft resulting 
from collisions in outer space. In this connection it may be noted that Gerlach 
has stated that the chances of collision between spacecraft are "practically 
nil." "Contribution," First Colloquium 67, Compare Beresford, supra note 13, 
at 242. However, the fact remains that such collisions or accidents may 
occur between space objects while in outer space. Consequently, General As- 
sembly Resolution 1962 (8) provided that "Each State which launches or 
procures the launching of an object into outer space, and each State from 
whose territory or facility an object is launched, is internationally liable for 
damage to a foreign State or to its natural or juridical persons by such 
object or its component parts on the earth, in air space, or in outer space." 

93 Such collisions might be with natural objects, such as celestial bodies 
or meteors. It could involve contact with other spacecraft. Such contact 
could be either intentional or accidental. Verschoor has suggested that a 
launching state might claim nonliability on the grounds of force majeure where 
there had been an "unforeseen collision with a meteor." Supra note 12, at 
103. Mankiewicz has urged, the acceptance of the standard of absolute liability 
for "those who control the launching of the space vehicle or the activities for 
which it is used * • *" [and] that the "same principle should apply to what- 
ever damage is caused by a space vehicle or a space activity, irrespective of 
the kind of the damage and the place where it occurs." Supra note 13, at 209- 
210. Compare Haley, supra note 1, at 299-300. 

94 Most of the commentators have discussed harm as the product of tangible 
destruction or injury to persons and property, such as toxic harm resulting 
from inhalation of fumes from fuel, or destruction of property from explosion 
or collision, or personal injury or death resulting from being struck by parts 

791-405—66 25 



376 

ages, 95 the implementation of international agreements in national 
laws, 96 the jurisdiction of national courts over claims for damage, 97 

of a space vehicle or debris. Harm may take varying forms. Keating has 
noted the possibility of trespass by satellite. "Space Law and the Fourth 
Dimension of Our Age," First Colloquium 87. Presumably this would take into 
account unsanctioned movement through a nation's airspace, and would raise 
the question of the reasonable measure of damage. In view of the fact that 
small satellites might make several or more orbits before being consumed in 
the atmosphere or landing, the measure of damages, if any, would have to 
consider the number of trespasses. Spent satellites may have a life expect- 
ancy of many years with a resulting interference with the proposed orbits 
of new satellities. This fact might be considered as a basis for damage, 
particularly when such satellites continued to transmit radio signals causing 
interference with frequencies allocated to other users by the International 
Telecommunications Union. Lyon, supra note 20, at 284. Noise may become 
a basis for liability. 

95 There is general agreement that the conventions dealing with the liability 
for aircraft damage are inapplicable to space vehicles. Proposals range from 
full responsibility to limited liability. Comparisons have been made with 
liability for nuclear disaster where under the Price-Anderson amendments to 
the Atomic Energy Act of 1954 the maximum figure of $500,000,000 has been 
fixed for indemnification in connection with each domestic nuclear incident. 
See Financial Protection Against Risks of Major Harm in Government Pro- 
grams 17; Verschoor, supra note 12, at 103; Haley, supra note 1, at 294. 
Beresford has noted that the OEEC draft convention on liability arising from 
nuclear risks fixes a limit of $15,000,000 and that "as a practical matter, dam- 
ages must probaby be limited since States are not likely to assume unlimited 
liability. On the other hand, the limit of damages should be set high enough 
to compensate litigants for the greatest injury or loss that can be reasonably 
expected." Supra note 58, at 154. However, under the OEEC draft, a state 
may be permitted to limit liability to $5,000,000. Compare, Verschoor, supra 
note 90, at 332. 

96 This is essentially a national problem and depends on whether the inter- 
national convention is or is not self -executing. In order to avoid uncertainties 
it may be desirable to specify in the convention that it is self-executing, 
that is, does not require implementing legislation. Or, certain provisions could 
be described as self-executing. In the United States there has been much 
attention given to the contents of treaties in order to ascertain if they fall 
into one of these categories, for example, the U.N. Charter. See Hudson, 
"Charter Provisions on Human Rights in American Law," 44 A.J.I. L. 543 
(1950) ; Evans, "Some Aspects of the Problem of Self -Executing Treaties," 
44 Proceedings of the American Society of International Law 68 (1951). 
Wright, "National Courts and Human Rights— the Fujii Case," 45 A.J.I.L. 62 
(1951). Preuss, "Some Aspects of the Human Rights Provisions of the Charter 
and their Execution in the United States," 46 A.J.I.L. 289 (1952). 

97 Financial Protection Against Risks of Major Harm in Government 7-8, 
42-43, 78-84. Leonard, "The United States as a Litigant in Foreign Courts," 
52 Proceedings of the American Society of International Law 101-102 (1958). 



377 

the extent to which a state might pursue claims against the entity 
causing the harm, 98 and the process whereby international responsi- 
bility might be established/ 



99 



5. Free World Views: Groups 

The problems of liability have attracted the attention of several 
prominent international groups. In 1961, at the 12th Conference of 
the Inter- American Bar Association, a Magna Carta of Space was 
adopted in which that body favored the view that "In the event 
of injuries or death to persons or damage to property caused by 
space vehicles, rockets, missiles, satellites and the like, the sovereign 
power by or through which they have been launched shall be respon- 
sible and liable for all such damage without the requirement of any 
proof of fault, negligence, carelessness or recklessness." 10 ° 

The Committee on Aeronautics of the Association of the Bar of 
the City of New York has suggested some tentative views in a pro- 



98 See Note 93, supra. Cooper has urged recovery to include damage to 
individuals and damage suffered by a state. Supra note 13, at 144. 

99 Judicial processes, such as the International Court of Justice, have been 
preferred. Rauchhaupt, "World Space Law," Second Colloquium 127, has sug- 
gested an appropriate international court either connected with the World 
Court or a separate one as in the case of the Coal and Steel Community. He 
has also noted the suitability of arbitration. "The Problem of Damages in 
Space Law," Third Colloquium 136. Weinmann and H. C. McDougall have 
considered diplomatic negotiations, voluntary arbitration, or the World Court 
to be appropriate methods. "The Law of Space," 35 Foreign Service Journal 
22 (April 1958). For an analysis of problems involved in the use of national 
commissions for settling international claims, see Lillich, International Claims: 
Their Adjudication by National Commissions (1962). 

Cooper has said that where claims arise from collision or other damage 
in outer space states "should have the right to invoke the compulsory juris- 
diction of the International Court of Justice." Supra note 13, at 144. Beres- 
ford has urged that the compulsory jurisdiction of the World Court be used, 
and that claims heard there should include harms suffered both by states 
and by private persons. As an alternative he has noted the possibility of 
arbitration, "either by a permanent commission or by ad hoc commissions 
composed of representatives from the countries concerned." He has noted 
the difficulties involved in suits in the municipal courts of the nation respon- 
sible for the harm. Supra note 58, at 155. Compare, Report to the United 
Nations General Assembly, United Nations Ad Hoc Committee on the Peaceful 
Uses of Outer Space, U.N. Doc. A/4141, 23; Legal Problems of Space Explora- 
tion, A Symposium 1269. 

100 Resolutions, Recommendations, and Declarations Adopted by The Twelfth 
Conference of the Inter- American Bar Association 4 (1961). In 1964 the 
leaders of this body were critical of General Assembly Resolution 1962 (XVIII) 
as not going far enough in establishing rules on liability. Los Angeles Times, 
April 6, 1964. 



378 

visional draft agreement. Its proposal provided that the participating 
states would "consider that injury or damage caused by space activ- 
ities should, subject to any limits to be specified in the future, be 
reimbursed, regardless of fault, by the State or States responsible for 
the space activity." 101 The Bar group noted the need for express 
agreement on the "incidence and possible limits of liability, the 
procedures for obtaining reimbursement, liability in case of collision, 
and the possible desirability of regular contributions by States or 
other organizations engaged in space activities to an international 
fund out of which such reimbursement might be claimed." 102 

The Davies Draft Code of Rules, which took into account the 
possibility that a private person might be licensed to engage in space 
activity, placed responsibility for space harms squarely on the public 
launching entity. Paragraph 6 of the draft provided: 

6.1 The State or States or international body responsible 
for the launching of a spacecraft shall be liable for any breach 
of the Draft Code in which it may be involved, for any injury 
or loss caused by the spacecraft, or any part of it 

a. by physical impact, contamination, or otherwise, to any 
person or property whatsoever outside the territory of the States 
responsible for the flight of the spacecraft; 

b. as a result of collision or navigational interference to any 
aircraft, 

1. in the airspace of another State: or 

2. of a nationality other than that of the spacecraft, with- 
out proof of negligence in the operation of the spacecraft 
being required. 103 

The proponents of this rule urged that states should bear their own 
loss for the damage resulting from the collision of spacecraft in 
outer space, but was qualified that if by agreement a state were 
required to give prior notice of a launch and failed to do so, a valid 
basis for assigning liability to the noncomplying state existed. Addi- 
tionally, since contamination might take several forms, including 
radiation and microorganisms returned to earth by space vehicles 



ioi Forum on Space Law 12 (March 24, 1960). 

102 Ibid. As to indemnification see Financial Protection Against Risks of 
Major Harm in Government Programs 16-19, 50-53. The Inter-American Bar 
Association plan called for the establishment of an international insurance 
fund to provide for compensation for harms. 

103 Davies Draft Code of Rules on the Exploration and Uses of Outer Space 
16. The proposal suggested a ceiling of fifty million dollars for liability for 
injury or loss. 



379 

which had been in contact with celestial bodies, the need for an 
international body to enforce claims was also foreseen. 104 

Meyer has reported the findings of the Legal Gommittee of the 
German Scientific Society for Air Navigation which, in 1962, con- 
sidered the question of liability for damages caused by spacecraft. 105 
It was their view that tort liability should be imposed on the opera- 
tor of a spacecraft, and that where such craft was engaged in flight 
to the surface of the earth or in airspace, the rule of absolute liability 
was to be imposed on any collisions between aircraft and spacecraft. 
In the event of a collision in outer space, liability was to depend on 
proof of fault, but by reason of the difficulty of such proof, this ap- 
proach would result in each operator's bearing its own loss. The 
group considered that "contributory negligence of the person who 
suffers damages or of his servants or agents reduces the compensa- 
tion or excludes it entirely." 106 The group also considered such issues 
as : that liability should be limited, that every operator must provide 
evidence of insurance up to a given (but unstated) amount, that in 
the event of a private entity's tort, such person might be sued in the 
national courts where the injury took place, that if such an injury 
resulted in a stateless territory (such as the high seas), the private 
litigant might sue in the courts of the state of which he were a na- 
tional, and that appeals might be taken to the World Court. The 
latter Court was considered to be the forum for interstate disputes, 
and was to have exclusive jurisdiction where the amount of the claim 
exceeded the limits of a state's insurance or the guarantee fund set 
up to compensate those harmed. 

The German Legal Committee took note of the need for an inter- 
national convention which would establish the conditions under 
which outer space activities would be subject to license by a state. 
According to it, state liability should extend to harms occurring in 
the territory of a state, on and over the high seas, and in outer space. 
A claim might be maintained by a person whose state had not become 
a party to the convention. Opposition was expressed to the view that 
an injured person should be entitled to pursue his claim against his 
own state when the harm was caused by another state's operator pur- 
suant to some pre-established right of the former to have recourse 
against the latter. It was thought to be more practical to "channel the 
liability to the operator of the spacecraft to a certain maximum, and 



104 lUd., 16-17. 

105 Meyer, supra note 20, at 344-345. 

106 IMd., 344. 



380 

then to require the Contracting State which licensed the spacecraft 
to assume liability for the damages in excess of the limits." 107 

From all of the foregoing, there is strong reason for believing that 
international lawyers accept the view that a state may be held to 
account for torts committed outside the territorial jurisdiction of 
that state. 108 There is clearly an urgent need for an international 
convention to fix the details. It is particularly necessary to establish 
the liability of such international corporate bodies as groups of states 
and international organizations. As Jenks has noted "there remains 
the question whether its liability should be regarded as arising under 
and being measured by the law of the territory where the damage or 
injury is suffered or should be determined by an international 
standard." 109 Until an appropriate international convention, but- 
tressed by national legislation, makes specific provision for the 
myriad of tort problems arising from activities in space, the general 
consensus as to the substance of rights and duties may fail to afford 
real protection. 110 It would be well to fix reasonable conventional 
rules prior to an event requiring the ascertainment of individual 
rights and the nature of international duties. Until this happens 
states will rely heavily on the principles of General Assembly Resolu- 
tion 1962 (XVIII). 

B. POSSESSORY RIGHTS, ASSISTANCE TO PERSONNEL AND 
RETURN OF PERSONNEL AND SPACE VEHICLES 

1. Possessory Rights 

At an earlier stage in the development of the myriad uses of space 
vehicles, and at a time during which control of the vehicle after 
launch was less sophisticated than at present, there was some inclina- 
tion to draw an analogy between spacecraft after launch and a fired 



107 Ibid., 346. Compare Verschoor, supra note 90, at 331-333, where notice 
is taken of the need for a statute of limitations on the filing of claims. 

108 Compare, Trail Smelter Arbitration, 35 A.J.I.L. 684 (1941). See also the 
Corfu Channel Case, 1949 I.C.J. Reports 4, 22. 

109 Jenks, The Proper Law of International Organizations 224, 219-220 
(1962). 

110 Bilateral conventions may be used where there is a high degree of 
probability that one state's activities may be injurious to another state. For 
example, the United States and Australia entered into an agreement on 
"Sampling of Radioactivity of Upper Atmosphere by Means of Balloons" relat- 
ing to operations conducted in Australia. The two countries agreed that to 
the extent Australia was not otherwise compensated by the United States, the 
Atomic Energy Commission of the United States would indemnify Australia 
against "(a) claims in the form of judgments rendered or settlements ap- 



381 

bullet, over which it was suggested the firer no longer exercised prop- 
erty or possessory rights. 111 Others were quick to compare the space 
vehicle with a baseball or a golf ball with the view that they, like 
the bullet, were aimed, but unlike the bullet were intended to come 
again into the possession of the player for future and additional 
use. 112 The assumed inability or limited ability of the launcher to 
control the space vehicle after launch suggested the possibility that 
the vehicle, at least by implication, was to be considered as having 
been abandoned. It was soon realized that such vehicles, and to a 
lesser extent the launching mechanism which followed the vehicle 
into space or orbit, were subject to some management from the 
ground. With the development of many improvements in command 
systems, particularly with the perfection of the manned satellite and 
techniques employed in deep space probes, the measure of their con- 
trol and proprietary attitudes have been substantially increased. 113 

Many factors have influenced the conclusion that the launcher, 
operator, or user of a space vehicle (and presumably its accompany- 
ing launching device) retained ownership and possession of the vehi- 
cle or device. For example, no express abandonment has ever been 
recorded and there have been no implied abandonments. Rather, 
there has been much national pride in the fact that "our" satellite was 
launched successfully on a given date. Haley has expressed the view 
that for space vehicles legal abandonment can not take place where 
"the intent to abandon is lacking." 114 

Many factual considerations support the view that a launch does 
not constitute an intentional abandonment of property